Citation Nr: A24020249 Decision Date: 04/22/24 Archive Date: 04/22/24 DOCKET NO. 231101-388683 DATE: April 22, 2024 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran had active military service with the United States Army from October 1965 to October 1967, and from May 1980 to September 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2023 AMA rating decision issued by the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). By way of procedural history, November 2020 rating decision denied entitlement to service connection for bilateral knees. The Veteran submitted a timely VA Form 10182 and selected the Hearing option. See February 2021 VA Form 10182. In March 2022, the Veteran testified before a Veterans Law Judge. Unfortunately, there was an audio malfunction during the hearing and a transcript is unavailable. In June 2022, the Veteran indicated that he wanted an additional hearing; however, he withdrew that request in July 2022. These matters were earlier before the Board in April 2023 at which time they were remanded to the AOJ for new VA examinations. Under the Appeals Modernization Act (AMA), appeals do not automatically return to the Board after remand. However, in this instance, the RO issued a new October 2023 rating decision, and the Veteran perfected a new appeal. Thus, the matter has again returned to the Board for adjudication. The Veteran again selected the Hearing with a Veterans Law Judge lane; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his attorney at the Board hearing or within 90 days following the Board hearing. 38 C.F.R. § 20.302 (a). This matter has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c). The Board finds that a remand is necessary to correct the pre-decisional duty to assist errors discussed below. 38 C.F.R. § 20.802(a). 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. The Veteran contends that his bilateral knee condition is due to his military service, to include performing physical training in boots not properly fitted for his flat feet, which caused pain to his knees. See February 2024 Hearing Transcript page 4. The Veteran testified that he experienced bilateral knee pain while in service and since service, but did not continuously report said pain while on active duty in an attempt to not appear that he was not "up to par" with fellow non-African American soldiers. Id at page 5. In October 2023, the AOJ rendered favorable findings. Specifically, the AOJ found current left and right knee disabilities and an in-service event, injury, or disease dated September 8, 1994. Under applicable law, favorable findings are binding on the Board. Therefore, the first and second elements of service connection have been established. The Veteran's service treatment records indicate that he complained of left knee pain in September 1994. X-rays at that time were within normal limits. At his May 1995 retirement examination, his lower extremities were normal, and he denied having had trick or locked knee. Post service, a July 2004 treatment record noted the Veteran's complaints of bilateral knee pain. A 1998 diagnosis of joint space narrowing and ossification of the patella/quad tendon of the left knee were also noted. X rays of the knees at that time showed mild medial space narrowing and enthesophyte formation. A September 2014 VA treatment record indicated that the Veteran had bilateral knee pain. It was noted that the Veteran had X-rays and magnetic resonance imaging (MRI) with an outside physician and that he had arthritis of the knees. A January 2015 private medical record indicated that the Veteran underwent left knee arthroscopy and partial medial meniscectomy. It was noted that he had a medial meniscus tear and degenerative joint disease of the left knee. A VA examination for the knees was conducted in November 2020. The examiner indicated that the Veteran only had a diagnosis of left knee strain and that he did not have a meniscus condition. The examiner also indicated that there was no current right knee disability. The examiner made no mention of prior knee diagnoses of record, to include bilateral degenerative joint disease/arthritis, or left knee meniscus tear, and did not note his prior left knee surgery. Therefore, the Veteran's relevant medical history was incomplete and/or inaccurate, and it is unclear whether the examiner fully reviewed the claims file. Thus, the Board finds the opinion to be inadequate. Pursuant to the April 2023 remand, addendum opinions were provided. August 2023 VA opinion concluded that the Veteran's bilateral knee conditions were at least as likely as not incurred in or caused by service. The rationale states that the Veteran had no issues related to bilateral knees prior to service, and that current diagnoses are related to "DJD diagnosis during service." Notably, the Veteran's STRs are silent for any bilateral knee DJD or arthritis diagnosis during service. Thus, the Board finds this opinion inadequate as it is based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (concluding that a medical opinion is only as good and credible as the history on which it was based, and if based on an inaccurate factual premise, it has no probative value). A follow-up opinion was provided by the same April 2023 physician, on the same date, which contrarily found the Veteran's bilateral knee conditions to be less likely as not due to service. The rationale states that there is a lack of substantiating evidence supporting a nexus, and without chronicity of care during service or after service, a post-service event, illness, or injury is considered to be a more likely etiology. First, a negative opinion cannot be based solely on a lack of documented treatment or diagnosis during service. See Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documented evidence during or after service cannot be the sole basis for an opinion against the claim). Moreover, treatment records contradict the examiner's finding of a lack of substantiating evidence supporting chronicity of care post service, as the record has numerous private and VA treatment records indicating bilateral knee pain and treatment. Lastly, an absence of chronicity of care is not a valid basis for a negative medical conclusion given that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. Cosman v. Principi, 3 Vet. App. 503 (1992). Considering the above, these opinions are inadequate. An addendum opinion was requested in September 2023 informing the examiner that the Veteran was indeed not diagnosed with any knee condition in service contrary to the August 2023 rationale. The September 2023 examiner noted a 1998 diagnosis of space narrowing and ossification of the patella/quad tendon of the left knee and concluded that because this diagnosis was made three years post separation, and there was no chronicity of care from 1995 to 1998, a nexus could not be established. For similar reasons highlighted above, the Board finds this opinion to be inadequate. First, this opinion is based solely on the lack of documented evidence of continued bilateral knee treatment during or right after service. See Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim). Lastly, an absence of chronicity of care is not a valid basis for a negative medical conclusion given that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. Cosman v. Principi, 3 Vet. App. 503 (1992). Here, the examiner provided no clinical basis for rejecting a nexus to service, but instead relied solely on a lack of continued care in and immediately post-service. As the opinions are inadequate, the Board finds that a pre-decisional duty to assist error occurred, and the issue must be remanded so that a new medical opinion can be obtained. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed right and left knee disabilities. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any currently present right or left knee disability was incurred in or is etiologically related to the Veteran's active service, to include participating in physical training with boots not properly fitted for his flat feet. The examiner should consider and address the Veteran's contention that he experienced knee pain in service but did not continuously report such pain due to the resulting stigma of continuously reporting injuries. See February 2024 Hearing Transcript page 3. The examiner should also consider and address the buddy statements of record indicating the Veteran exhibited bilateral knee issues in service, and that he was placed on restrictive duty due to bilateral knee pain. See August 2005, April 2006, and May 2006 Buddy Statements. A negative opinion cannot be based solely on a lack of documented treatment or diagnosis during service or a lack of medical records demonstrating a continuity of care after service. A complete rationale should be provided for any opinions rendered. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell, Tangela The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.