Citation Nr: 20054477 Decision Date: 08/17/20 Archive Date: 08/17/20 DOCKET NO. 15-35 130A DATE: August 17, 2020 REMANDED Entitlement to service connection for degenerative joint disease of the right knee is remanded. Entitlement to an initial rating in excess of 10 percent for residuals of left proximal tibia stress fracture with degenerative changes (left knee disability) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1978 to October 1978. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board previously considered these matters in September 2018, when it remanded the case for additional development. It has now returned to the Board for appellate review. 1. Entitlement to service connection for degenerative joint disease of the right knee is remanded. While the additional delay is regrettable, after a review of the evidence of record, the Board finds that there has not been substantial compliance with the September 2018 remand directives, and a remand for corrective action is required. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with remand instructions, and imposes on VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In the September 2018 remand, the Board directed the agency of original jurisdiction (AOJ) to schedule the Veteran for a VA examination and opinion in connection with his claim for service connection for degenerative joint disease of the right knee. See 09/07/2018 BVA Remand. Pursuant to the Board remand, the Veteran underwent a VA knee and lower leg conditions examination in August 2019. 08/20/2019 C&P Exam. The VA examiner diagnosed the Veteran with osteoarthritis of the right knee, and provided negative nexus opinions for direct service connection and as secondary to the Veteran’s service-connected left knee disability. Regarding direct service connection, the examiner opined that it was less likely than not that the Veteran’s osteoarthritis of the right knee was related to active service. The examiner’s rationale was that the Veteran’s service treatment records (STRs) were silent for evidence of complaints of or treatment for a right knee condition. See id. The examiner also stated that, regarding secondary service connection, it was less likely than not that the Veteran’s osteoarthritis of the right knee was related to active military service or caused or aggravated by his service-connected left knee disability. See id. As rationale for the negative opinion, the examiner stated that osteoarthritis is caused by injury or wear and tear to the joint, and that there is no medical evidence that osteoarthritis in one joint causes the same in the opposing joint. Here, the Board finds that the August 2019 VA examiner’s opinion is inadequate as it pertains to direct service connection because its rationale is based on the absence of evidence of a right knee condition in the Veteran’s STRs. The absence of evidence in treatment records should not be the primary basis for a negative opinion. Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). Further, an examiner cannot rely on the absence of medical records corroborating an injury to conclude that there is no relationship between the Veteran’s current disability and his military service (citing Smith v. Derwinski, 2 Vet. App. 137, 140 (1992). Likewise, the Board finds the August 2019 VA examiner’s conclusory opinion as to secondary service connection inadequate because its rationale is based solely on the absence of general medical literature to support the Veteran’s aggravation theory. A medical opinion that fails to “provide any rationale specific to the Veteran’s particular medical condition and circumstances” is inadequate. See Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018) (holding that a medical opinion that relies on the absence of general medical literature supporting nexus without discussing the specific facts of a case is inadequate as a matter of law). As the August 2019 VA examiner’s opinion is based on the absence of general medical literature in support of nexus, and fails to show consideration of the facts specific to the Veteran’s case, the board finds the opinion to be inadequate. Further, the Board finds the August 2019 opinion inadequate because the examiner failed to show adequate consideration of the Veteran’s reports of overuse of the right knee to compensate for his service-connected left knee disability. See 10/08/2013 VA 21-4138 Statement in Support of Claim; see also 02/12/2014 C&P Exam at 9. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). Here, the Board notes that the August 2019 examiner stated that osteoarthritis is caused by injury or wear and tear to the joint, but did not acknowledge the Veteran’s reports of overuse of his right knee to compensate for his left knee disability, and failed to discuss why such overuse would not constitute evidence of wear and tear to the joint. See 08/20/2019 C&P Exam. Accordingly, the Board finds that a remand is required to schedule the Veteran for a new medical opinion regarding his right knee condition. 2. Entitlement to an initial rating in excess of 10 percent for residuals of left proximal tibia stress fracture with degenerative changes (left knee disability) is remanded. After a careful review of the record, the Board finds that there is evidence that the Veteran’s left knee disability has increased in severity since his last VA examination in August 2019. Accordingly, although the Board regrets the delay, further development is necessary prior to adjudicating the Veteran’s claim for an increased rating for a left knee disability, and a remand is required to schedule the Veteran for an additional VA examination. Specifically, the Board finds that a remand is required to obtain a current VA examination. When the Veteran asserts, or the evidence indicates, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran most recently underwent a VA examination to assess the severity of his left knee disability in August 2019. 08/20/2019 C&P Exam. The VA examiner noted a diagnosis of tibia stress reaction with osteoarthritis of the left leg and osteoarthritis of the right knee. At the examination, the Veteran stated that his left leg condition had worsened, and reported symptoms of constant pain in his legs, including weakness and instability. Range of motion testing results were abnormal for the bilateral knees, with both demonstrating flexion and extension to 110 degrees. The VA examiner found evidence of crepitus in the bilateral knees, and noted bilateral knee pain upon range of motion testing, to include pain with weight-bearing, as well as pain resulting in functional loss. In July 2020, the Veteran informed VA that he was scheduled to undergo right knee replacement surgery on August 19, 2020, and would undergo left knee replacement surgery at a later date. See 07/28/2020 VA 27-0820 Report of General Information. As the Veteran has indicated that his bilateral knee conditions have worsened since the August 2019 VA examination, to include the need for bilateral knee replacement surgery, the Board finds that a new VA examination to assess the current severity of the Veteran’s left knee disability is warranted. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file all outstanding records of VA treatment related to the Veteran’s bilateral knee conditions, to include records dated after July 8, 2020. See 07/15/2020 CAPRI (showing the most recent VA treatment records associated with the claims file). Specifically, the AOJ must ensure that all medical records relating to the Veteran's bilateral knee replacement surgeries scheduled for August 2020 be obtained and associated with the Veteran's claims file. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any medical records relevant to his bilateral knee conditions. Subsequently, and after securing the proper authorizations where necessary, arrange to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After completing the development requested in #1 and #2, schedule the Veteran for a VA examination with an appropriate clinician to assess the nature and etiology of his right knee condition. The entire claims file, including a copy of this remand, should be made available for the examiner’s review. The examiner is asked to perform all indicated tests and studies and provide an opinion as to the following: (a.) whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s right knee condition was incurred in or is otherwise etiologically related to his active military service; (b.) if not, whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s right knee condition was caused by his service-connected left knee disability; and (c.) if not, opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s right knee condition was aggravated (i.e., worsened beyond the natural progression) by the Veteran’s service-connected left knee disability. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. The examiner is asked to specifically consider: (a.) the Veteran’s report that his bilateral knee conditions, to include osteoarthritis, are due to injuries he suffered in a fall during active duty service. See 07/27/2020 VA 27-0820 Report of General Information; and (b.) the Veteran’s reports of overuse of the right knee to compensate for his service-connected left knee disability. See, e.g., 10/08/2013 VA 21-4138 Statement in Support of Claim; see also 02/12/2014 C&P Exam at 9. 4. In addition, after the development requested in #1 and #2 is completed, schedule the Veteran for another VA examination with an appropriate clinician to determine the current nature and severity of the Veteran’s service-connected left knee disability. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. All indicated studies should be performed if deemed necessary by the examiner for the evaluation of the Veteran under the pertinent rating criteria. The examiner should identify all symptoms and impairment associated with the Veteran’s bilateral knee disabilities, noting their frequency and severity. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing, for both the right knee and left knee. The examiner should identify whether there is pain during motion and, if so, at what degree pain begins. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Tremont 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.