Citation Nr: 18146979 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 18-07 214 DATE: November 2, 2018 REMANDED The claim for service connection for chronic right knee disability, to include as secondary to the service connected status post left knee meniscectomy, is remanded. REASONS FOR REMAND This appeal has been advanced on docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). The Veteran served on active duty in the United States Army from August 1979 to August 1986 and from April 2009 to April 2011. He has an additional period of service in the Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran seeks service connection for a right knee disability secondary to his service connected status post left knee meniscectomy. The Veteran was denied service connection by a January 2016 rating decision. This rating decision denied service connection for the claimed condition of the right knee on both a direct and secondary basis. A disability which is proximately due to or the result of a service-connected disease shall be service connected. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability has aggravated a non-service disability. Allen v. Brown, 7 Vet. App. 439 (1995). Although the Veteran’s claim is based upon secondary service connection, the Board is required to consider all theories of entitlement reasonably raised by the record. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (The Board is required to weigh all theories of entitlement raised either by the claimant or by the evidence). It was noted in the Veteran’s service treatment records from September 2009, that there may have been a right knee injury. Upon further review of the records, the probative weight of the evidence shows that this was more than likely a mistake on part of the treating physician. The doctor noted in one instance “right” when it was the left knee that was injured. Nonetheless, the Veteran’s service treatment record from October 2009, indicate that the Veteran was seen for chronic persistent bilateral knee pain. The record indicates that the Veteran served in the Army National Guard after the active duty periods, with a Medical Evaluation Board Proceeding in April 2018 for his right knee condition. Service connection may be granted for a disability or injury incurred in or aggravated by “active military service.” 38 U.S.C. § 1100; 38 C.F.R. § 3.303. The term “active military, naval, or air service” includes any period of Active Duty for Training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred or aggravated in line of duty. This term also includes any period of Inactive Duty for Training (INACDUTRA) during which the individual was disabled from an injury incurred or aggravated in line of duty. Thus, the Veteran may be service connected for a disorder if it is shown that this disorder had its onset during a period of ACDUTRA or is related to an injury incurred during a period of ACDUTRA or INACDUTRA. The Board finds that the December 2015 and July 2018 VA opinions regarding secondary service connection for a right knee disability are inadequate to make an informed decision on the Veteran’s claim. The VA examiner in December 2015 stated that the claimed condition is less likely than not proximately due to or the result of the Veteran’s service connected condition as the Veteran has a service connected left knee condition but today no bio-mechanical factors are identified in the left knee which would cause or induce a contralateral knee condition. The VA examiner in July 2018 also stated that the current right knee degenerative arthritis and meniscal tear status post meniscectomy is less likely than not secondary to the left knee. The rationale provided was that there is a normal gait and no evidence of biomechanical stress to associate the right knee to the left one. Both opinions do not address aggravation with respect to secondary service connection. An opinion regarding secondary service connection is inadequate if it does not address both causation and aggravation of the nonservice-connected condition. See El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013). The matter is REMANDED for the following action: 1. Obtain VA treatment records from September 2018 to present. 2. There are several documents in the Veteran’s claim folder that require translation from Spanish to English. Please obtain translations for these documents. 3. Verify the Veteran’s periods of ACDUTRA and INACDUTRA during the Veteran’s National Guard service and undertake actions to obtain all associated National Guard duty treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. An addendum VA opinion regarding the right knee disability is ordered and the necessity of another in-person examination is left to the discretion of the examiner. The entire electronic claims file must be reviewed reviewed, to include this Remand. Following that review, the examiner should offer the following opinion: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current right knee disability was aggravated by the service connected left knee disability or aggravated beyond its natural progression by his service-connected left knee disability. (b.) The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current right knee disability had an onset in service or is otherwise related to service. (c.) The examiner should also opine whether it is at least as likely as not (50 percent probability or greater) arthritis of the right knee was manifest to at least a compensable degree within one year of his discharge as to both active duty service periods. If so, the examiner should comment on the nature of those manifestations. (d.) Lastly, the examiner should also opine whether it is at least as likely as not (50 percent probability or greater) that the disability was caused or aggravated due to a disease or injury during a period of ACDUCTRA or INACDUTRA service in the Army National Guard. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. The Veteran 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 Veteran’s Appeals or by the United States Court of Appeal for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Kim, Associate Counsel