Citation Nr: 18150556 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-18 969 DATE: November 15, 2018 ORDER The application to reopen the claim of service connection for a back disability is granted. The application to reopen the claim of service connection for a right knee disability is granted. The application to reopen the claim of service connection for left leg shortening is denied. Entitlement to service connection for a right leg disability, to include as secondary to service connected disease or injury is denied. Entitlement to a rating in excess of 20 percent for status post anterior cruciate ligament (ACL) repair is denied. A separate 10 percent rating for the service-connected left knee disability based on instability is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for a back disability, to include as secondary to service connected disease or injury is remanded. Entitlement to service connection an acquired psychiatric disorder, to include as secondary to service connected disease or injury is remanded. Entitlement to service connection for a right knee disability, to include as secondary to service connected disease or injury is remanded. FINDINGS OF FACT 1. Evidence received since the July 2005 final rating decision is new and material and raises a reasonable possibility of substantiating the Veteran’s service connection claim for a back disability. 2. Evidence received since the April 1999 final rating decision is new and material and raises a reasonable possibility of substantiating the Veteran’s service connection claim for a right knee disability. 3. Evidence received since the July 2005 final rating decision is cumulative or redundant of evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a left leg shortening disability, and does not raise a reasonable possibility of substantiating the claim. 4. The Veteran does not have a right leg disability. 5. The Veteran is receiving the maximum schedular rating for ACL repair, range of motion of the right knee was greater than 60 degrees flexion and 5 degrees extension, and there was no ankylosis or other impairment of the knee. 6. The Veteran’s left knee is manifested by slight instability. CONCLUSIONS OF LAW 1. Evidence received since the July 2005 final rating decision in relation to the Veteran’s claim for entitlement to service connection for a back disability is new and material, and, therefore, the claim is reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. 2. Evidence received since the April 1999 final rating decision in relation to the Veteran’s claim for entitlement to service connection for a right knee disability is new and material, and, therefore, the claim is reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. 3. Evidence received since the July 2005 final rating decision in relation to the Veteran’s claim for entitlement to service connection for a left leg shortening disability is not new and material, and, therefore, the claim may not be reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. 4. The criteria for entitlement to service connection for a right leg disability, to include as secondary to service connected disease or injury are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for a rating in excess of 20 percent for ACL repair are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.14, 4.27, 4.71a, Diagnostic Code 5258. 6. The criteria for a separate 10 percent rating for the service-connected left knee disability based on instability is granted. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1979 to July 1983 and from September 1987 to September 1990. New and Material Evidence 1. Whether New and Material Evidence has been Introduced to Reopen a Claim for Service Connection for a Back Disability 2. Whether New and Material Evidence has been Introduced to Reopen a Claim for Service Connection for a Right Knee Disability In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that once new and material evidence has been presented as to an unestablished fact from a previously denied claim for service connection, the claimant will be entitled to the full benefits of the Secretary’s duty to assist, including a medical nexus examination, if one is warranted; it does not require new and material evidence as to each previously unproven element of a claim. The Veteran was denied service connection for a right knee disability in April 1999, and was most recently denied service connection for a back disability in July 2005. At the time of the April 1999 rating decision, the Veteran’s contention was that his right knee disability was caused by his service-connected left knee disability. The RO asked the Veteran to provide medical evidence to support this notion and the Veteran failed to respond. The claim was denied because there was no medical evidence in the claims file supporting a relationship between the Veteran’s right and left knee disabilities. At the time of the July 2005 rating decision, the Veteran’s contention was that he had a back disability that was caused by his service-connected left knee disability. His claim was denied because he failed to report to a scheduled VA examination and there was no other evidence in the claims file to support his assertion. Since the time of the April 1999 and July 2005 rating decisions, VA and private treatment records were added to the claims file which reflect treatment for the Veteran’s back and right knee, demonstrating the potential for diagnosed disabilities that were not considered at the time of the prior decisions. Private treatment records reflect degenerative disc disease, diagnosed sometime in 2010. See January 2014 private treatment records. In April 2013, the Veteran was diagnosed with bilateral knee arthritis. See April 2013 VA treatment records. Pursuant to the Court’s holding in Shade and presuming the credibility of the evidence for the sole purpose of determining whether the claims should be reopened, the Board concludes that the above medical evidence suggests new diagnoses that were not considered at the time of the previous rating decisions. At the very least, this new evidence raises a reasonable possibility of substantiating the claims and constitutes new and material evidence sufficient to reopen the Veteran’s service connection claims. However, as will be discussed more fully below, the Board finds that additional development is necessary prior to adjudication of these claims. 3. Whether New and Material Evidence has been Introduced to Reopen a Claim for Service Connection for a Left Leg Shortening Disability The Veteran was most recently denied service connection for a left leg shortening disability in July 2005. At the time of the July 2005 rating decision, the Veteran’s contention was that he had a left leg disability that was caused by his service-connected left knee disability. His claim was denied because he failed to report to a scheduled VA examination and there was no other evidence in the claims file to support his assertion. Evidence added to the record since the time of the July 2005 rating decision, fails to show treatment for a left leg shortening disability and does not indicate that there is any relationship between a left leg shortening disability and service or a service-connected disability. In fact, it does not appear any medical evidence relating to a left leg shortening disability has been added to the claims file. While the Veteran’s ongoing contentions are noted, they are cumulative and thus not new and material. Thus, the Board concludes that the evidence added to the record since the July 2005 Board decision is not new and material. In summary, the defect existing at the time of the 2005 Board decision has not been cured, and the claim of entitlement to service connection for left leg shortening disability may not be reopened. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1131. To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service” - the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in-service. 38 C.F.R. § 3.303(d). Service connection for chronic disease may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Herein, arthritis is applicable as a listed chronic disease. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. A disability which is proximately due to or the result of a service connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease will be service connected. 38 C.F.R. § 3.310 (b). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement for a current disability is satisfied if the disability is shown at any time subsequent to filing the claim, even if not shown currently. McLain v. Nicholson, 21 Vet. App. 319 (2007). The Board notes that the Veteran is not asserting that his claimed disability resulted from him engaging in combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154(b) are not applicable. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to Service Connection for a Right Leg Disability, to include as Secondary to Service Connected Disease or Injury The Veteran filed a claim for entitlement to service connection for a right leg disability in March 2013. The Veteran’s service treatment records (STRs) are associated with the claims file. There are no complains of or treatment for a right leg condition. As discussed in further detail below, the Veteran is service-connected for a left knee disability, resulting from an injury incurred in service, and has filed a separate claim for entitlement to service-connection for a right knee disability. No other leg condition is noted. VA treatment records and private treatment records are also associated with the claims file. They do not reflect treatment for a right leg disability. The Board recognizes that the Veteran has not been afforded a VA examination for a right leg disability. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (1) contains competent evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that an event, injury, or disease occurred in service or certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) indicates that the disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability. McClendon v. Nicholson, 20 Vet. App. 79 (2006). VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to and mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Board finds that the standards of McClendon are not met in this case. The evidence of record fails to show that the Veteran was ever diagnosed or suffered from a right leg disability during service or any time after service. Thus, the Board finds that a VA examination for a right leg disability is not warranted. In the absence of evidence of a current disability, there can be no grant of service connection under the law. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In summary, the evidence of record does not support a finding that service connection for a right leg disability is warranted. The Veteran does not currently have a right leg disability, therefore service connection for a right leg disability cannot be granted under the law. Brammer, 3 Vet App. at 223, 225. Increased Ratings Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. § Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are not applicable in this case. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 5. Entitlement to a Rating in Excess of 20 Percent for Status Post Anterior Cruciate Ligament (ACL) Repair The Veteran’s status post anterior cruciate ligament (ACL) repair is evaluated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5258, the diagnostic criteria applicable to semilunar cartilage. Under that code, a maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. All potentially applicable rating criteria will be considered. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II. Diagnostic Code 5256 rates based on the presence of ankylosis, or immobility of the joint. As the Veteran has movement in the left knee joint, this code is inapplicable. Pursuant to Diagnostic Code 5260, when flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. Diagnostic Code 5261 rates based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. The Veteran cannot receive ratings for his left knee disability under both DC 5258 and DC 5261 and/or 5260 without violating the rule against pyramiding. A precedential opinion of VA Office of General Counsel, which is binding on the Board, has determined that limitation of motion is a relevant consideration under DC 5259, which also addresses disability of semilunar cartilage. See VAOPGCPREC 9-98. By analogy, limitation of motion is also a consideration under DC 5258. Separate ratings under DC 5258 and DC 5260 and/or 5261 (the DCs which address limitation of flexion and extension of the leg) are therefore precluded due to the prohibition against pyramiding. 38 C.F.R. § 4.14. The diagnostic criteria applicable to recurrent subluxation or lateral instability is found at 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under that code, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. The terms “mild,” “moderate,” and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “mild” or “moderate” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent rating, which is the maximum rating under the diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5259. The diagnostic criteria applicable to impairment of the tibia and fibula are found at 38 C.F.R. § 4.71a, Diagnostic Code 5262. The Veteran does not appear to suffer from any impairment of the tibia and fibula. In March 2013, the Veteran filed a claim for increased compensation for his left knee disability. The Veteran attended a VA examination in December 2013. He told the examiner that he was an avid deer hunter, enjoyed fishing frequently, and owned his own home. He did not report any flare-ups of the left knee, but reported popping, grinding and instability. He also reported that he used a left knee brace constantly. Range of motion (ROM) testing revealed right knee flexion to 105 degrees and left knee flexion to 90 degrees with no objective painful motion. Extension was 0 degrees bilaterally, with no objective painful motion. The Veteran was able to perform repetitive testing with no additional loss of motion or objection painful motion noted. The examiner noted that the Veteran appeared to be making a submaximal effort. The examiner determined that the Veteran’s left knee caused functional loss and/or functional impairment because of less movement than normal, pain on movement, swelling, and disturbance of locomotion. The Veteran did not have tenderness or pain to palpation for joint line or soft tissues. Muscle strength was 5/5 for flexion and extension. An anterior instability test revealed 2+ on the left side. Posterior instability and medial-lateral instability were normal. There was no patellar subluxation or dislocation. Instability of station was not noted. The Veteran underwent an additional VA examination in March 2016. He reported walking with infrequent giving way and that he used a left knee brace constantly. ROM was normal in the right knee and revealed flexion to 90 degrees and extension to 10 degrees in the left knee. There was evidence of pain with weight bearing as well as pain during the examination which would cause functional loss. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive testing with no additional loss of motion or additional painful motion. Instability of station, disturbance of locomotion and interference with standing were noted as additional contributing factors. Muscle strength in the left knee was 4/5 for flexion and extension. A slight history of lateral instability was noted. There was evidence of joint stability during testing. Anterior instability testing was 1+. Posterior, medial, and lateral instability testing were all normal. VA treatment records show continued treatment for a left knee disability and pain but do not reflect symptoms associated with a higher disability rating. In this case, the RO assigned a 20 percent rating for the left knee under Diagnostic Code 5258 which is the maximum rating. This rating is in effect for the entire appeal period. After reviewing the record, which includes VA examinations, as well as VA and private treatment records, the Board concludes that a higher rating is not warranted for this period. As the maximum rating under DC 5258 is 20 percent, that diagnostic code is not for consideration in assigning a higher rating. The Board also notes that a rating in excess of 20 percent would not be warranted under 5260 or 5261 because while the Veteran has repeatedly complained of chronic knee pain, the limitation of motion findings for flexion and extension recorded in the VA examination do not meet the requirements for the next higher ratings under either DC 5260 or DC 5261, even considering related functional impairment. Instead, the Board will consider whether a separate rating is warranted for instability of the left knee. In that regard, the Board notes that on the VA examination in 2016, the Veteran reported his knee would give way, and that he constantly wore a brace. The examiner noted instability of station. The Board finds that his left knee symptoms approximate slight recurrent subluxation or lateral instability, and a separate 10 percent rating is warranted. The Board has considered a higher rating for the Veteran’s left knee instability; however, the competent evidence of record does not show his left knee instability approximates a degree of severity higher than slight. In short, the Veteran has reported only infrequent giving way and the use of a left knee brace. There is no evidence of record that the Veteran’s left knee instability is of moderate or greater severity. Thus, a 10 percent rating, but no higher, for left knee instability is warranted. REASONS FOR REMAND 1. Entitlement to Service Connection an Acquired Psychiatric Disorder, to include as Secondary to Service Connected Disease or Injury is Remanded. The Veteran filed a claim for entitlement to service connection for a mental health disability in March 2013. A private health service provider in psychology diagnosed the Veteran with a mood disorder in a July 2014 and determined that the disorder was related to the Veteran’s service-connected left knee disability. See July 2014 private medical opinion. He was afforded a VA examination in April 2016. The examiner reported that the Veteran did not have a mental health disorder and was therefore unable to provide a nexus opinion. He did not address the Veteran’s private diagnosis or VA treatment records reflecting mental health treatment. A VA opinion as to whether the Veteran has a mental health disorder that is related to service or a service-connected disability is needed. 2. Entitlement to Service Connection for a Back Disability, to include as Secondary to Service Connected Disease or Injury is Remanded The Veteran filed a claim for entitlement to service connection for a back disability in March 2013. The Veteran’s service treatment records (STRs) are associated with the claims file. The Veteran received treatment for low back pain in November 1988. Although diagnostic testing revealed minimal narrowing of the L4-5 inner space, the treating physician determined that the results were questionable and recommended clinical correlation. On his July 1990 Report of Medical History, the Veteran stated that he had experienced back pain. Examination determined that his spine was normal. Following separation, the Veteran attended a VA examination in November 1990. The examiner determined that the Veteran did not have a back disability eligible for service connection. March 1995 VA diagnostic testing revealed a normal lumbar spine. Following a VA examination, an examiner determined that the Veteran had a lumbosacral strain which could have been aggravated by the Veteran’s left knee. See March 1995 VA examination. The Veteran attended another VA examination in July 1998. He reported continuous back pain since service. Following an examination and review of the Veteran’s medical history, the examiner stated that there was no evidence of a back disability. July 2012 private treatment records reflect that the Veteran was diagnosed with degenerative disc disease (DDD). The Veteran underwent an additional VA examination for his back in December 2013. The examiner listed the following back disabilities: osteoarthritis of the thoraco-lumbar spine; DDD of the lumbar spine; and intervertebral disc syndrome (IVDS) of the lumbar spine. The Veteran told the examiner that he had experienced back pain continuously since the in-service incident in which he injured his left knee. Following an examination and a review of the claims file, the examiner determined that any back disability was less likely than not related to service. The examiner explained that the Veteran’s medical history revealed relatively normal back examinations and diagnostic testing for several years following separation from service. He also questioned the Veteran’s credibility, noting that the Veteran stated that he enjoyed hunting and fishing, but the severe back problems described would have prevented the Veteran from those activities. The examiner also noted that the Veteran’s BMI was 34.17 and was a factor in the Veteran’s back pain. The examiner did not provide an opinion regarding whether or not the Veteran’s back disabilities were related to his service-connected left knee disability. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a back disability because the claims file does not include a satisfactory opinion regarding whether or not the Veteran’s back disabilities were related to his service-connected left knee disability. Additionally, no VA examiner has remarked on whether or not the Veteran’s in-service low back pain is related to his current back disabilities. 3. Entitlement to Service Connection for a Right Knee Disability, to include as Secondary to Service Connected Disease or Injury is Remanded The Veteran filed a claim for entitlement to service connection for a right knee disability in March 2013. April 2013 VA treatment records reflect bilateral knee arthritis. He was afforded a VA examination in December 2013. The examiner reported that the Veteran did not have a right knee disability and therefore was unable to provide a nexus opinion. He did not address the Veteran’s diagnosis of right knee arthritis earlier the same year. Because the Veteran was diagnosed with a right knee disability during the pendency of the claim, an opinion as to whether the right knee disability is related to service or a service-connected disability is needed. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any mental health disorder. If a mental health disorder is found, the examiner must opine: (a.) whether any mental health disorder is at least as likely as not related to an in-service injury, event, or disease. (b.) whether any mental health disorder is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. The examiner should address the VA mental health treatment records, and the July 2014 private mental health opinion. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 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. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any back and right knee disabilities. The examiner must opine: (a.) whether any back or right knee disabilities are at least as likely as not related to an in-service injury, event, or disease. (b.) whether any back and right knee disabilities are at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. The examiner is asked to address the Veteran’s in-service low back pain treatment, as well as the March 1995 opinion relating back pain to the left knee disability. The examiner is also asked to address the April 2013 VA treatment records reflecting bilateral knee arthritis. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 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. Biswajit Chatterjee Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Fitzgerald, Associate Counsel