Citation Nr: 18155792 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 14-15 620 DATE: Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee and/or service-connected right hip disabilities. December 6, 2018 REMANDED Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee and/or service-connected right hip disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1997 to August 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an August 2015 travel Board hearing. A transcript of that hearing has been associated with the claims file. This matter was last before the Board in January 2018, at which time it was remanded for further development. Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee and/or service-connected right hip disabilities is remanded. The Board remanded this matter for further development in February 2016 and again in January 2018. The Veteran was afforded a VA knee examination in January 2017. The Veteran reported that he developed left knee pain in 2012 due to compensating for his right knee disability and denied any history of left knee trauma. The examiner noted subjective pain upon examination, but no underlying diagnosis. The examiner then noted that, unless there are major complications that have caused a significant alteration to the individual's gait pattern, resulting in a major post-surgical limp occurring over a prolonged period of, it is unlikely there would be a detrimental effect on the opposite knee. The Veteran was afforded a VA knee examination in March 2018. The Veteran reported experiencing left knee pain, now daily, for several years with no formal treatment. Upon examination, range of motion was normal with no pain noted. The examiner noted that there is no left knee diagnosis. Neither the January 2017 or March 2018 VA examiners addressed the Board’s remands. Furthermore, the Board notes that the Veteran’s examination have, to this point, been inconsistent and contradictory of one another. Further, the Board notes that in Saunders v. Wilkie, 17-1466 (Fed. Cir. April 3, 2018), the Federal Circuit held that pain, a symptom, may constitute a disability if it produces functional limitation or impairment without identification of the underlying cause of pain. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee and/or service-connected right hip disabilities. Another remand with a new VA examiner is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2018 to the Present. 2. After, and only after, completion of step one above, schedule the Veteran for an examination by an appropriate clinician, who has not examined the Veteran prior, to determine the nature and etiology of any left knee disability, to include functional impairment due to pain. The examiner must opine whether it is at least as likely as not related to an in-service injury. The examiner must opine as to whether it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected right knee disability. The examiner must opine as to whether it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected right hip disability. The examiner’s attention is invited to the July 2014 VA examiner who noted a diagnosis of bilateral medial compartment osteoarthritis with patellar tendinopathy and stated that the “Veteran’s left knee contralaterally was compensating for his right knee and now has similar conditions in both knees, weight not withstanding”, and that the Veteran walked with an abnormal gait for many years due to his right knee condition. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). 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. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 3. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel