Citation Nr: 18148787 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 08-16 456 DATE: November 8, 2018 REMANDED 1. Entitlement to service connection for paraplegia with loss of use of both lower extremities as secondary to service-connected postoperative osteochondritis dissecans of both knees, is remanded. 2. Entitlement to a certificate eligibility for financial assistance in the purchase of an automobile with adaptive equipment is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty in the U.S. Navy from August 1974 to March 1977. These matters are before the Board on appeal from an April 2007 (secondary service connection for paraplegia) and September 2008 (entitlement to eligibility for financial assistance in the purchase of an automobile and adaptive equipment) Department of Veterans Affairs (VA) rating decisions. In October 2011, a videoconference hearing was held before the undersigned; a transcript is associated with the claims file. In January 2012 and July 2016, the Board remanded the appeal for further development. A July 2017 Board decision denied both claims on appeal. The Veteran appealed the July 2017 Board decision to the United States Court of Appeals for Veterans Claims (CAVC). An April 2018 CAVC Order vacated and remanded the Board’s decision for proceedings consistent with a March 2018 Joint Motion for Remand (Joint Motion). The March 2018 Joint Motion instructed the Board to consider whether an increased rating claim for both knees was reasonably raised by the wording of a July 2006 Veteran’s statement. In the July 2006 statement (on a VA Form 21-4138), the Veteran indicated that his service-connected bilateral knee condition “has now deteriorated and I am now confined to a wheelchair at all times,” and “please accept this as a claim for complete loss of use of both lower extremities due to my service-connected disabilities.” The Joint Motion also instructed the Board to consider whether the unadjudicated increased rating claim might include the “inferred issue” of entitlement to SMC based on the loss of use of both lower extremities. The Board construes the statement as reasonably raising issues of entitlement to increased ratings for postoperative osteochondritis dissecans of both knees and entitlement to special monthly compensation (SMC) based on loss of use of both lower extremities under 38 U.S.C. § 1114(m). Therefore, the Board does not have jurisdiction over these two issues, and are referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. 38 C.F.R. § 19.9(b). Regarding the remanded issues: First, the parties to the March 2018 Joint Motion agreed that a remand to obtain a new VA opinion that addresses whether the Veteran’s service-connected bilateral knee disability “aggravates” his paraplegia of the lower extremities was necessary. The opinion on December 2016 VA examination was deemed inadequate as it did not include sufficient rationale regarding whether the Veteran’s service-connected bilateral knee disability aggravates his paraplegia. The December 2016 VA examiner stated there is no “connection" in the medical literature between the two disabilities, and the parties to the March 2018 Joint Motion agreed that the opinion was conclusory and was not supported by sufficient rationale. Notably, the CAVC has held that a VA medical opinion should not combine causation and aggravation when addressing secondary service connection, as they are independent concepts requiring separate findings and rationale. Atencio v. O’Rourke, 30 Vet. App. 74, 90 (2018). If the December 2016 VA examiner is unavailable or unable to provide the clarifying opinion referral of the matter to another appropriate clinician for review and the addendum opinion is necessary. [Another knee examination is not necessary unless the consulting provider so indicates.] Second, the parties to the Joint Motion agreed that the automobile with adaptive equipment claim is inextricably intertwined with the secondary service connection for paraplegia claim; if secondary service connection for paraplegia is granted it would impact on the adjudication of the automobile with adaptive equipment claim (as that requires service-connected permanent loss of use of one or both feet). See 38 C.F.R. § 3.808(b)(1). Accordingly, adjudication of the automobile and adaptive equipment claim must be deferred pending resolution of the service connection for paraplegia claim. The matters are REMANDED for the following: 1. Arrange for a clarifying addendum opinion by the December 2016 VA knee examiner. [If that provider is unavailable, arrange for another appropriate clinician to review the record and provide the addendum opinion sought.] All opinions must include rationale. The consulting provider should respond to following: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s current paraplegia has been aggravated by his service-connected bilateral knee disabilities? [Aggravation is defined as a worsening of the disability beyond natural progression.] The consulting provider is cautioned to not combine the causation and aggravation facets of secondary service connection, as [under governing caselaw] they are independent concepts requiring separate findings and rationale. The provider’s attention is directed to the following evidence: a January 1996 VA examination report; a December 1997 private medical opinion upon knee examination from Dr. A.B.; a May 1998 VA examination report; an August 1998 statement by a VA physician; a July 1999 VA examination report; a January 2002 VA knee examination report; an August 2004 VA spine examination report; a January 2007 VA spine examination report; a July 2010 VA examination report; and a December 2016 VA examination. Please cite to the factual data that support the conclusions reached (and to supporting medical literature, as deemed appropriate). 2. When the development sought above is completed, readjudicate the secondary service connection for paraplegia claim, and then the entitlement to eligibility for financial assistance in the purchase of an automobile and adaptive equipment claim considering the determination on the service connection for paraplegia claim. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. Rubin, Counsel