Citation Nr: 21001725 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-08 212 DATE: January 11, 2021 REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to a compensable disability rating prior to May 7, 2013 and a disability rating in excess of 10 percent thereafter for service-connected right knee tendonitis to include shin splints of the right leg is remanded. Entitlement to a compensable disability rating prior to May 7, 2013 and a disability rating in excess of 10 percent thereafter for service-connected shin splints of the left leg is remanded. REASONS FOR REMAND The Veteran had active duty service from September 1994 to August 2002. In December 2018, the Board of Veterans Appeals (Board) reopened the claim of entitlement to service connection for a bilateral knee disability and then remanded the underlying service connection claim as well as claims for increased ratings for shin splits in the left and right leg for additional development. Following the Board’s remand, in July 2020, the Regional Office (RO) granted service connection for right knee tendonitis with limited extension and assigned a noncompensable evaluation effective May 7, 2013. Additionally, the rating decision granted an earlier effective date for service connection of right knee tendonitis to include shin split of the right leg to May 7, 2013. See July 2020 rating decision. As the benefit of service connection for the right knee has been granted in full, there remains no question of law or fact on appeal, and the Board will only address the issue of entitlement to service connection for the left knee in this decision. The Board also observes the Veteran filed a recent claim in August 2020 which included service connection for left leg motion and increased rating for impairment of the left lower leg. Because those claims were already on appeal before the Board, the September 2020 rating decision explained they would not be considered a new claim and would not be addressed further by the Regional Office (RO). Additionally, in December 2020, the Veteran filed a supplemental claim for service connection for a military sexual trauma as well as an anxiety condition. This claim has been acknowledged by the Regional Office and is pending development and adjudication. Lastly, new evidence has been added to the record since the issuance of the July 2020 Supplemental Statement of the Case, including VA treatment records and examination reports. In November 2020, the Board asked the Veteran if she was willing to waive initial review by the Agency of Original Jurisdiction (AOJ) and she replied in December 2020 requesting that her case be sent back to the AOJ for their review of the additional evidence. As such, the issues must be remanded for AOJ consideration. Notably, the issue of entitlement to service connection for a left knee disability is also remanded for additional development prior to readjudication and there is no prejudice to the Veteran due to the Board proceeding because the AOJ will have an opportunity to review the new evidence upon the remand. 1. Entitlement to service connection for a left knee disability is remanded. The Veteran contends she suffers from a left knee disability as a result of her military service. At the outset, the Board notes the Veteran’s April 1994 Report of Medical Examination for purposes of enlistment indicates the Veteran suffered from hypertension of both knees. See Service treatment records. Therefore, the question to be addressed is whether the Veteran’s pre-existing left knee disability was aggravated by her military service. While the Veteran underwent VA examinations to determine the nature and etiology of her left knee disability, pursuant to the December 2018 Board remand, the medical opinions obtained do not clearly answer the pertinent question of aggravation. Specifically, an October 2019 Disability Benefits Questionnaire (DBQ) diagnosed the Veteran with bilateral knee tendonitis and a resolved left tibia stress fracture and found the resolved stress fracture was likely the result of repetitive pounding and marching on concrete. Additionally, the examiner opined the knee tendonitis was not related to the shin splints as they involved two different anatomical areas: patellar tendon with the tenonitis and tibia with the shin splint. See October 2019 DBQ. Moreover, the October 2019 VA examiner opined the Veteran’s bilateral knee condition preexisted her service and was less likely than not incurred in or caused by the specific in-service illness, event or injury including the many knee conditions in her service treatment records. In support of that finding, the examiner noted abnormal hypertension of both knees on the Veteran’s enlistment examination in April 1994. The examiner explained that hyperextension of the knee, also known as guru recurvatum, occurs when the leg excessively straightens at the knee joint, putting stress on the knee structures and the back of the knee joint. During hypertension, the knee joint bends the wrong way, which often results in swelling, pain and tissue damage. See October 2019 VA medical opinion. However, the record also includes a June 2020 VA DBQ which similarly opined the Veteran’s bilateral knee condition pre-existed her service and it was less likely than not incurred in or caused by her service, including treatment of her knee during service. However, the June 2020 DBQ medical opinion that follows did find that the Veteran’s right knee, which clearly and unmistakably existed prior to service, was also aggravated beyond its natural progression by the complaints, pain and instability during service. See June 2020 DBQ. While the June 2020 DBQ did not offer a medical opinion as to whether the Veteran’s left knee was also aggravated beyond its natural progression by her service, it stands to reason that if her right knee was found to be aggravated by her service, it is possible that her left knee could have also been aggravated. This possibility contradicts the unfavorable medical opinion provided by the October 2019 VA examiner. Accordingly, considering the contradictory medical opinions of record regarding the Veteran’s pre-existing left knee disability, the Board finds a medical addendum opinion is needed to specifically address whether her left knee disability was clearly and unmistakably aggravated beyond its natural progression by her service, including clear notations of pain during service. 2. Entitlement to a compensable disability rating prior to May 7, 2013 and a disability rating in excess of 10 percent thereafter for service-connected right knee tendonitis to include shin splints of the right leg and entitlement to a compensable disability rating prior to May 7, 2013 and a disability rating in excess of 10 percent thereafter for service-connected shin splints of the left leg is remanded. As previously discussed, the Veteran requested her claims be remanded back to the AOJ for review of the additional evidence that was submitted in her appeal, including VA treatment records and examination reports. These issues must be remanded for AOJ consideration. The matters are REMANDED for the following action: 1. Obtain a medical addendum opinion by the June 2020 VA examiner, if available. If not, the Veteran’s claims file should be forwarded to another appropriate clinician for an addendum opinion. The examiner must review the claims file (to specifically include the reasons provided in this remand) and provide a response to the following: Did the Veteran’s left knee disability, which existed prior to service, at least as likely as not increase in severity during service? If so, was the increase in severity clearly and unmistakably (undebatable) due to the natural progress of the disease? 2. After any appropriate development has been completed, readjudicate the issues on appeal, considering all evidence received since the July 2020 Supplemental Statement of the Case. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Churchwell, 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.