Citation Nr: 20032340 Decision Date: 05/07/20 Archive Date: 05/07/20 DOCKET NO. 17-22 490 DATE: May 7, 2020 REMANDED Entitlement to an initial rating in excess of 30 percent for degenerative joint disease (DJD) of the left knee, status-post total knee arthroplasty (left knee disability), is remanded. Entitlement to service connection for degenerative joint disease (DJD) of the right knee (right knee disability), to include as secondary to service-connected left knee disability, is remanded. Entitlement to a total disability rating based on individual unemployability due to service- connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1966 to October 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The VLJ in this proceeding granted in February 2010 the Veteran’s agent’s request for a 30-day extension of time to submit additional evidence. 1. Entitlement to an initial rating in excess of 30 percent for left knee disability is remanded. At his December 2019 hearing, the Veteran reported worsening symptoms of his left knee, including giving out that results in falls as well as additional pain. See Hearing Transcript (December 2019). The Veteran testified that he cannot wash dishes without needing to sit down after about seven minutes. See id. To ensure that VA has met its duty to assist, remand is necessary. 38 C.F.R. § 3.159(c). The Veteran last underwent a VA examination to evaluate his left knee in March 2017, where his pain was shown mainly when getting up or down out of chair. There was no evidence of pain with weight bearing and no joint instability. Given the Veteran’s assertions of worsening symptoms, which the March 2017 VA examination does not reflect (i.e. instability and pain on weight bearing), as well as earlier VA examination findings of no restrictions to sedentary work and the Veteran’s reports at his December 2019 hearing that he cannot sit for extensive periods of time due to his left leg swelling and necessitating that he elevates his leg to the level of his heart, a new examination is necessary to properly evaluate the Veteran’s left knee disability. While the mere passage of time is not grounds for a new examination, a new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. See 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Lastly, at his December 2019 hearing, the Veteran also identified relevant outstanding private treatment records from the Veteran’s family physician. A remand is required to allow VA to obtain authorization and request these records. 2. Entitlement to service connection for a right knee disability is remanded. The Veteran contends that he compensated for his pain in the left knee by using his right leg more, which resulted in additional strain on his right knee. See Hearing Transcript (December 2019). The medical opinions of records are inadequate to decide the appeal as they are not supported by a complete rationale. It is noted that a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. Also, “[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Here, January 2014 and March 2017 VA medical opinions reflect that right knee disability is less likely than not related to the Veteran’s service, but offered no rationale. A medical opinion that contains only data and conclusions is accorded no weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, the opinion cited to general studies, including UpToDate, without addressing the Veteran’s specific circumstances. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009). Further, the opinions provided no explanation for the conclusion that the Veteran’s right knee was not aggravated by his left knee condition, seemingly attributing the Veteran’s right knee disability strictly to age based on general medical literature. However, given that the Veteran was born in 1944, and the earlier notations of osteoarthritis date to 1998, the Veteran was about 54 when he started developing arthritis. It is unclear whether the examiner accounted for these Veteran-specific facts in rendering his medical opinion. See LeShore v. Brown, 8 Vet. App. 406 (1995) (the mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional); see also Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018). Further, a January 2020 private medical opinion from the Veteran’s treating physician reflects that the Veteran’s current knee pain and total knee replacement are more likely than not a result of his knee problems and subsequent surgeries in service; and that “right knee DJD [is] a result of his long-term left knee abnormal weight bearing, instability and pain - probably yes.” The opinion reflects the conclusion that long term instability and pain in the left knee caused the Veteran to gait more onto his right knee. However, no clear rationale for the conclusions reached was given. Hence, the private medical opinion is inadequate and the Board may not rely on it to award the benefit sought. Accordingly, remand is necessary obtain new VA medical opinion in this matter. 3. Entitlement to a TDIU is remanded. The Board notes that the Veteran’s claim for TDIU is inextricably intertwined with the claims for increased rating for his left knee disability and for service connection for right knee remanded herein. Therefore, the Board must defer consideration of this matter at this time. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2017 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms associated with his knee symptoms and treatment. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected left knee disability alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Obtain an addendum medical opinion from an appropriate physician to address the nature and etiology of the Veteran’s diagnosed right knee disability. The clinician must opine on whether it is at least as likely as not related to an in-service injury and whether it is at least as likely as not (a) proximately due to service-connected left knee disability, or (b) aggravated beyond its natural progression by service-connected left knee disability. Address the Veteran’s theory that right knee disability was caused by altered body mechanics and/or weight distribution during activities to include walking and carrying objects. Provide a complete rationale for the conclusions reached. Support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; and ensure that the medical opinion contains clear conclusions with supporting data, and a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, indicate so and discuss why, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.