Citation Nr: 1759917 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 06-24 782A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to a service connected disability. 2. Entitlement to service connection for residuals of a back injury. 3. Entitlement to service connection for a right knee disability, claimed as traumatic arthritis. 4. Entitlement to service connection for a left knee disability, claimed as traumatic arthritis. 5. Entitlement to service connection for right knee nerve damage. 6. Entitlement to service connection for left knee nerve damage. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Baskerville, Counsel INTRODUCTION The Veteran served on active duty from February 1977 to May 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In February 2011, the Veteran testified at a travel Board hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing is of record. In June 2016, the Board remanded, amongst other things, the matter of entitlement to service connection for a right ear hearing loss disability. In a May 2017 rating decision, the Appeals Management Center (AMC) granted the matter. The Board finds that the grant represents a full grant of the benefits sought. Thus, that claim is no longer before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In June 2016, the Board remanded the matters for addendum opinions which properly addressed the theories of direct and secondary service connection. Unfortunately, the Board finds that the addendum opinions obtained are inadequate. The October 2016 examiner again bases the rationale for negative nexus opinions on lack of a disability in service. The Board specifically noted in its remand that a lack of disability in service was not necessarily dispositive of a claim. Further, the examiner does not adequately address the issue of secondary service connection. He relies on the wrong legal standard in his opinion. In that regard, he opines that "bilateral knee condition was not aggravated beyond its natural progression by any in service injury/event or service connected conditions." However, the proper standard for secondary service connection is simply aggravation. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (in the context of secondary service connection, aggravation means "any increase in disability," and is distinguished from the more specific definition of aggravation of a pre-existing disease during service as defined in 38 U.S.C. § 1153). Therefore, the Board finds that a remand is necessary to obtain an addendum medical opinion which properly addresses direct and secondary service connection and provides a thorough rationale for all opinions reached. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum opinion from the October 2016 examiner (or an appropriate medical professional). The Veteran's electronic claims file, including a copy of this remand, must be made available to the examiner for review in connection with the opinion. If the examiner feels another examination is necessary, another examination should be scheduled. The examiner is requested to review the claims file and offer an opinion as to the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hypertension was incurred in or otherwise related to service. (b) If not, opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was caused by a service-connected disability. (c) If not, opine whether it is at least as likely as not that the Veteran's hypertension is aggravated (i.e. chronically worsened) by a service-connected disability. If aggravation is found, the examiner should address the following medical issues to the extent possible: i. the baseline manifestations of the Veteran's hypertension found prior to aggravation; and ii. the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disability. (d) Whether it is at least as likely as not (50 percent probability) that any current back related disability was incurred in or is otherwise related to service. (e) If not, opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's back disability was caused by a service-connected disability. (f) If not, opine whether it is at least as likely as not that the Veteran's back disability is aggravated (i.e. chronically worsened) by a service-connected disability. If aggravation is found, the examiner should address the following medical issues to the extent possible: i. the baseline manifestations of the Veteran's back disability found prior to aggravation; and ii. the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disability. (g) Whether it is at least as likely as not (50 percent probability) that any current bilateral knee disabilities were incurred in or is otherwise related to service. (h) If not, opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral knee disabilities were caused by his service-connected bilateral feet disabilities. (i) If not, opine whether it is at least as likely as not that the Veteran's bilateral knee disabilities are aggravated (i.e. chronically worsened) by his service-connected bilateral feet disabilities. If aggravation is found, the examiner should address the following medical issues to the extent possible: i. the baseline manifestations of the Veteran's bilateral knee disabilities found prior to aggravation; and ii. the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected bilateral feet disabilities. (j) Opine whether the Veteran suffers from any bilateral knee nerve damage disability. In the June 2016 remand, the Board requested that the examiner opine as to whether the Veteran has a current nerve disability in or around the bilateral knees. On the October 2016 VA examination report, the examiner opines that the Veteran does not have a peripheral nerve condition or peripheral neuropathy. However, under Section 3 "Symptoms" the examiner answers in the affirmative to the question of whether the Veteran has any symptoms attributable to any peripheral nerve condition. The examiner notes that the Veteran has mild right and left lower extremity intermittent pain. The Board requests clarification of whether the Veteran carries any diagnosis of a bilateral knee nerve disability. The report is being returned to the examiner to properly address the theories of direct and secondary service connection. The examiner improperly relied solely on the absence of a back or bilateral knee disability in service as a rationale for the opinions. Discussion of appropriate medical principles in a rationale is particularly helpful to the Board's analysis. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. A complete rationale is requested for all opinions. 2. Ensure the development outlined above has been accomplished, that the examination reports are adequate, and then arrange for any additional development indicated. Then, readjudicate the claims on appeal. If the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and her representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ J. K. BARONE Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).