Citation Nr: 20007969 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 16-60 337 DATE: January 30, 2020 REMANDED Entitlement to service connection for a left leg disability, to include as secondary to service-connected right knee chondromalacia with arthritis (hereinafter, a right knee disability), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1965 to April 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The matter was remanded by the Board in February 2018 and in October 2019. 1. Entitlement to service connection for a left leg disability, to include as secondary to service-connected right knee chondromalacia with arthritis (hereinafter, a right knee disability), is remanded. Regrettably, the Board finds that remand is warranted. However, based on the evidence of record it cannot be ascertained if an increased rating is warranted as new caselaw affects this decision. The issue of entitlement to service connection for a left leg disability as secondary to service-connected right knee chondromalacia with arthritis must be remanded for a new etiology opinion because the secondary service connection opinions of record are inadequate in light of the holding in Ward v. Wilkie. See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, the November 2019 VA addendum opinion. In June 2019, the United States Court of Appeals for Veterans Claims (the Court) issued a decision in Ward v. Wilkie, holding that secondary service connection is warranted for “any incremental increase in disability any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions... regardless of its permanence.” 31 Vet. App. 233 (2019). The Board finds that the secondary etiology opinions do not comport with the holding of Ward. Therefore, upon remand, a new etiology opinion must be obtained. The matters are REMANDED for the following action: 1. Obtain an addendum opinion to determine the nature and etiology of the Veteran’s left leg disability. Whether the Veteran should undergo a new examination for the opinion is up to the discretion of the examiner. The claims file must be made available to the examiner for review of the case. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. All tests and studies deemed necessary should be conducted. After reviewing the claims folder and examining the Veteran, for each current left leg disability diagnosis, the examiner is specifically instructed to provide the following information: (a) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s left leg disability BEGAN IN or is related to his time in the service, yes or no? (b) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s left leg disability was CAUSED BY HIS SERVICE-CONNECTED mild right knee disability, yes or no? (c) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s left leg disability underwent any incremental increase in disability, regardless of its permanence, due to: (i) the service-connected right knee disability, (ii) any other service-connected disability, (iii) medicine taken for his service-connected disability, yes or no? The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Additional disability due to flareups of musculoskeletal disabilities, even if it cannot be quantified, or an incremental increase in pain might constitute an increase in disability, or aggravation, for the purposes of secondary service connection. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. THE EXAMINER SHOULD ALSO BE AWARE THAT IN RENDERING AN OPINION, IT MUST “CONTAIN NOT ONLY CLEAR CONCLUSIONS WITH SUPPORTING DATA, BUT ALSO A REASONED MEDICAL EXPLANATION CONNECTING THE TWO.” SEE NIEVES-RODRIGUEZ V. PEAKE, 22 Vet. App. 295, 301 (2008). Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 2. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. 3. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Cho, 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.