Citation Nr: 20021723 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 17-14 738 DATE: March 26, 2020 REMANDED Entitlement to service connection for a right knee disorder is remanded. REASONS FOR REMAND The Veteran had active duty in the United States Navy from November 1966 to April 1975. In November 2019, the Veteran testified at a Board videoconference hearing before the undersigned Acting Veterans Law Judge. A transcript of that personal hearing has been associated with the claims file. Entitlement to service connection for a right knee disorder is remanded The Veteran generally contends that his right knee disorder is etiologically related to service on a direct basis and/or secondary to his service-connected left knee disorder. See March 2017 Code sheet (the Veteran is already service connected for residuals of left knee replacement); November 2019 Board hearing transcript (contended service connection on a secondary basis). Moreover, the Veteran was afforded pertinent VA examinations with opinions in July 2013 and February 2017; he was also afforded a pertinent VA opinion in May 2017. However, the Board finds that the etiology opinions provided by those VA examiners are not adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Initially, the Board has reached this conclusion because since the most recent opinion, the United States Court of Appeals for Veterans Claims (Court) in Ward v. Wilkie, No.16-2157__Vet.App.__, 2019 U.S. App. Vet. Claims LEXIS 994 at *15 (Jun. 14, 2019), held that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). Therefore, the examiners relied on an outdated legal standard when providing their etiology opinions. Further, the Board has reached this conclusion because the VA examiners relied on the inaccurate factual premise; that the Veteran had a pre-existing right knee injury at age 8. In this regard, while the April 1967 service treatment record (STR) noted a history of trauma to right knee at age 8, this reference seems to be in error because the remainder of the treatment note refers to the swimming accident involving the left knee (which resulted in subsequent left knee surgery). Moreover, while a review of the record on appeal reveals that this Veteran was not afforded an examination upon his entry onto active duty in November 1966 and therefore the presumption of soundness does not apply to his entry (see 38 U.S.C. §§ 1111, 1131), the Board nonetheless finds that the preponderance of the evidence shows that he did not enter active duty with a pre-existing right knee disorder. The Board has reached this conclusion because there is no mention of a pre-existing right knee injury anywhere else in the STRs except for the April 1967 note. Moreover, the Veteran has consistently and credibly reported that he never had any such right knee injury at age 8 (rather, he reported that he played sports throughout junior high and high school without any issues). See April 1967 consult (noted prior right knee injury, but subsequently discussed the left knee swimming injury); April 1971 examination (no mention of pre-existing or in-service right knee injury); March 1970 examination (no mention of pre-existing or in-service right knee injury); October 1970 examination (no mention of pre-existing or in-service right knee injury); March 1974 examination (no mention of pre-existing or in-service right knee injury); March 1975 examination (no mention of pre-existing or in-service right knee injury); July 2013 VA examination (the Veteran denied having a right knee injury at age 8); February 2017 VA examination (the Veteran denied having a right knee injury before service); November 2019 Board hearing transcript (the Veteran denied having a right knee injury before service); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based upon an inaccurate factual premise has no probative value); also see Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Furthermore, while the April 1967 STR noted history of trauma to right knee at age 8, controlling regulations provide that in-service statements against interest cannot be used against a Veteran when he is seeking entitlement to VA benefits. See 38 C.F.R. § 3.304(b) (“[s]igned statements of veterans relating to the origin, or incurrence of any disease or injury made in service if against his or her own interest is of no force and effect if other data do not establish the fact. Other evidence will be considered as though such statement were not of record.). As such, the Board must remand the appeal for the agency of original jurisdiction (AOJ) to obtain an adequate etiological opinion that addresses whether the Veteran’s right knee disorder (which has been found to not pre-exist service) was at least as likely as not (50 percent or greater probability): (a) caused by the Veteran’s service; and/or (b) secondary to the Veteran’s service-connected left knee condition (based on the definition in Ward, supra). See El–Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). In providing the opinion, the examiner must consider the Veteran’s consistent, competent, and credible lay contention that he overcompensated with his right knee/leg due to his left knee injury, surgery, and rehabilitation. See March 2017 VA Form 9 (contended that, due to his left knee issues, he had to carry the load on his right leg, which caused his right knee to “go out”); November 2019 Board hearing transcript (contended that, due to his left knee issues, he began favoring his right knee by constantly putting more weight and pressure on it while on crutches after left knee injury and that the favoring resulted in a limp); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lastly, while the appeal is in remand status, the AOJ should also obtain and associate with the record any outstanding VA and private treatment records. 38 U.S.C. § 5103A(b). The appeal is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. 3. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to obtain a medical opinion as to the origins of the Veteran’s right knee disorder. The claims folder should be made available to and reviewed by an examiner. Following consideration of the evidence of record (both lay and medical) and the findings on examination, the examiner is asked to address the following: a. Provide diagnoses of all right knee disorders. b. As to each diagnosed right knee disorder, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) causally related to active service. In providing the etiology opinion, the examiner must consider the fact that the preponderance of the evidence shows that the Veteran’s right knee disorder DID NOT pre-exist his military service. c. As to any arthritis, provide an opinion as to whether it manifested in the first post-service year. d. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any right knee disorder was caused by the service-connected left knee disorder. e. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any right knee disorder was aggravated by the service-connected left knee disorder. In providing answers to the above questions, the examiner is asked to consider and discuss all the lay claims from the Veteran including his claims that he overcompensated with his right knee/leg due to his left knee injury, surgery, and rehabilitation. In providing answers to the above questions, the examiner is asked to consider and discuss the service treatment records. In providing answers to the above questions, the examiner is advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing the etiology opinion as to any disorder, the examiner should be aware of the facts that the Court recently held in Ward, supra, that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). NEIL T. WERNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, 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.