Citation Nr: 19190859 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 14-34 375 DATE: December 3, 2019 REMANDED Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder, to include as secondary to left knee disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1980 to April 1988. In October 2017, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record. The record was held open for 60 days following the hearing to allow for the submission of additional evidence and the Veteran submitted private treatment records. In March 2018, the Board remanded the current claims for additional development. Entitlement to service connection for left and right knee disorders are remanded. In August 2019, the Veteran was afforded a qualified VA examination to assess the etiology of his bilateral knee disorders. See August 2019 VA Examination report. The examiner diagnosed the Veteran with left knee meniscal tear, left knee anterior cruciate ligament tear, and bilateral knee arthritis and rendered negative nexus opinions. Regarding the left knee, the examiner explained that there was a lack of proximity between the dates of service and the date of onset and treatment for degenerative arthritis in 2012, 24 years after service. The examiner also noted that the Veteran had a motor vehicle accident in 2015 that resulted in injuries to the left knee and required a meniscus repair surgery. Regarding the right knee, the examiner stated that while it was plausible that the Veteran had temporary aggravation of his right knee condition, there was no evidence of permanent aggravation in the claims file. She also explained that there were multiple factors that affected the right knee (obesity and arthritis) and the major factor affecting the right knee was arthritis, not the left knee and, therefore, a nexus was not established. The August 2019 VA examiner, however, based her negative nexus opinion for the left knee, in part, on the inaccurate factual premise that there was a gap of 24 years between the Veteran’s separation from service and his 2012 treatment for degenerative arthritis. See Reonal v. Brown, 5 Vet. 458, 461 (1993). In fact, VA treatment records clearly reflect the diagnosis and treatment of moderate degenerative joint disease (DJD) of the left knee in March 2000, 12 years earlier. See March 2000 VA Treatment records. As for the Veteran’s right knee disorder, the examiner’s opinion was based on the incorrect standard for secondary service connection. While permanent aggravation is required under 38 U.S.C. § 1153, it is not the applicable standard in this case. Rather, the correct standard under 38 C.F.R. § 3.310(a) only requires that there be “any” worsening of a nonservice-connected condition by a service-connected condition. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Accordingly, the Board finds that remand is warranted for new VA medical opinions consistent with the directives herein. Notably, although the Veteran submitted a medical opinion regarding the left knee from his private treating provider in November 2019, it is not supported by any rationale for that opinion. The matters are REMANDED for the following action: Obtain a VA medical opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s left and right knee disorders. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. a) Provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s left knee disorder had its onset in or is otherwise related to his active duty service. b) If, and only if, the Veteran’s left knee is found to be etiologically related to service, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s right knee disorder was caused or aggravated by his left knee disorder. The examiner is advised that aggravation is defined as any increase in disability. In rendering the above opinions, the examiner must specifically consider and discuss: i) the Veteran’s October 2017 Board hearing testimony that he has had left knee pain since his 1982 in-service injury, ii) Service treatment records (STRs) from September and October 1982 and August 1983 showing complaints for left knee pain and diagnosis for left knee sprain, iii) the Veteran’s February 1988 report of medical history showing reports of swollen/painful left knee, and iv) the March 2000 VA treatment records documenting moderate DJD of the left knee. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. E. Metzner, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.