Citation Nr: 21000957 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-29 248 DATE: January 6, 2021 REMANDED Entitlement to service connection for a right knee disability, claimed as arthritis, as secondary to service-connected left knee strain, is remanded. Entitlement to service connection for hearing loss is remanded. REASONS FOR REMAND The Veteran had active service from June 1963 to June 1967. The Veteran testified before the undersigned Veterans Law Judge (VLJ) of the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) in October 2019; a transcript is of record. In January 2020, the Board remanded these issues to the VA Regional Office (RO) for additional development; the claims file has been returned to the Board for adjudication. Entitlement to service connection for a right knee disability, claimed as arthritis, to include as secondary to service-connected left knee strain, and entitlement to service connection for hearing loss, are remanded. Specific to the Veteran’s claim of entitlement to service connection for a right knee disability, the RO, in an October 2020 rating decision of a Decision Review Officer (DRO), granted service connection for left knee strain. The Veteran’s attorney, in a November 2020 statement asserted that the Veteran’s right knee disability was secondary to his service-connected left knee strain; that the Veteran was not asserting entitlement to service connection for a right knee disability on a direct basis. The VA examiner, in the March 2020 Disability Benefits Questionnaire (DBQ) addendum opinion, was not asked and thus did not opine as to whether the Veteran’s right knee disability was secondary to his service-connected left knee strain. On remand, the RO must obtain an adequate addendum opinion as to the secondary nature of his claim. Specific to the Veteran’s claims of entitlement to service connection for a right knee disability and hearing loss, his attorney, in his November 2020 statement, reported that the October 2020 Statement of the Case (SOC) did not include information as to the location of the DBQs or the credentials of the examiners. He requested the DBQ and the examiner’s curriculum vitae. He did not specify which DBQ copy or which examiner’s curriculum vitae he sought, the Veteran’s February 2020 knee DBQ, with a March 2020 addendum etiological opinion, or his March 2020 audiological DBQ, with a March 2020 addendum etiological opinion. On remand, the RO should provide the Veteran copies of the February 2020 knee and audio DBQs and March 2020 addendum etiological opinions, as well as the curriculum vitae of each examiner and a copy of the knee DBQ addendum etiological opinion that is the subject of this Remand, and the curriculum vitae of the examiner who submits such, if he or she is not the examiner who conducted the February 2020 knee DBQ. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). Also, the Board, in its January 2020 Remand, directed the RO to seek the Veteran’s complete private treatment records from Harvard Vanguard Medical Associates, Beth Israel Deaconess Medical Center, and the medical care provider that began treating him for hearing loss about 12 years ago. In a January 2020 letter, the RO requested that the Veteran authorize VA to obtain his cited private treatment records and in June 2020, the Veteran submitted VA Forms 21-4142, Authorization and Consent to Release Information to VA, for his private treatment records from Harvard Vanguard Medical Associates and Beth Israel Deaconess Medical Center; he did not comment further on any medical care provider that began treating him for hearing loss about 12 years ago. The private treatment records from Harvard Vanguard Medical Associates were obtained, however, of record is a June 2020 response from Beth Israel Deaconess Medical Center indicating that they would not waive the fee required in order to forward the Veteran’s records to VA. While the RO, in its October 2020 SOC, in the list of evidence considered, included a notation of such, it does not appear that the RO informed the Veteran that they were unable to obtain his private treatment records or afforded him an opportunity to supplement the record with those records. On remand, the RO must do so. The matters are REMANDED for the following action: 1. Provide the Veteran copies of the February 2020 knee and audio DBQs and March 2020 addendum etiological opinions, as well as the curriculum vitae of each examiner and a copy of the knee DBQ addendum etiological opinion that is the subject of this Remand, and the curriculum vitae of the examiner who submits such, if he or she is not the examiner who conducted the February 2020 knee DBQ. If the curriculum vitae of any examiner is not available, the RO should advise the Veteran of such and note the reasons for such in the record. 2. Inform the Veteran that Beth Israel Deaconess Medical Center would not waive the fee required in order to forward his complete private treatment records to VA and afford him an opportunity to supplement the record with those records. 3. Forward the Veteran’s claims file to the VA examiner who conducted the February 2020 DBQ as to his right knee disability, or a suitable substitute, for an addendum etiological opinion. If any examiner determines that additional examination of the Veteran is required, so schedule the Veteran. A rationale for all opinions and a discussion of the facts and medical principles involved must be provided. (a) The examiner must opine as to whether the Veteran’s right knee disability is at least as likely as not (at least 50 percent probability) proximately due to his service-connected left knee strain. The examiner must consider any altered gait or compensatory motion caused by the left knee strain and its impact on the Veteran’s right knee disability. (b) The examiner must opine as to whether the Veteran’s right knee disability is at least as likely as not (at least 50 percent probability) aggravated beyond its natural progression by service-connected left knee strain. disability. The examiner must consider any altered gait or compensatory motion caused by the left knee strain and its impact on the Veteran’s right knee disability. In providing the opinion concerning aggravation, the examiner is advised that aggravation may include temporary worsening, or flare-ups, of a disability. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.