Citation Nr: 21001921 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-02 074 DATE: January 12, 2021 REMANDED Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability, is remanded. REASONS FOR REMAND The Veteran served on active duty (AD) from October 1980 to September 1986 but also had subsequent service in the reserves from 1989 to 2005, albeit unverified in terms of when he was on active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). In support of this claim, the Veteran testified at a hearing in February 2020 before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. This claim must be further developed before being decided on appeal. The Veteran has received a diagnosis of osteoarthritis of his left knee. He has proposed two different theories of entitlement insofar as the etiology of this condition being attributable to his military service. On the one hand, he believes this disability was directly caused by his duties and responsibilities in the Marines and Reserves (i.e., the “wear and tear” on this knee he had to endure). He also believes this disability alternatively is secondary to – meaning caused or aggravated by – overuse from having to overcompensate owing to his service-connected right knee disability. The Veteran had approximately six years of active service. But, as already alluded to, he also contends that he subsequently had six months of Marine Corps Reserves and 16 years in the Army Reserves; there are no records detailing the extent of this duty (e.g., number of days of ACDUTRA and INADCUDTRA). He has stated that “22 years” of running, jumping in and out of trucks, and marching have caused his left knee condition (see September 2016 Notice of Disagreement (NOD). As he has indicated that his Reserve duties are related to his current left knee disability, this information may be relevant. The Veteran has stated that he sought treatment for his left knee in approximately 2010 at a private provider (Kaiser). Records from this time are not associated with the claims file but may be relevant. In addition, a December 2014 VA clinical record notes that he reported that he had x-rays of his knees taken in approximately June or July 2014 at Kaiser, and a February 2015 VA clinical record reflects that he reported that he would continue to treat with Kaiser. An April 2017 VA Form 21-4142 request for records from 1990 to 2017 from Kaiser Permanente is associated with the claims file, but the earliest Kaiser record actually associated with the claims file is from 2017. The claims file is unclear as to whether VA attempted to obtain the Veteran’s complete records from Kaiser and whether he was notified that records prior to 2017 were not or could not be obtained. A 2016 Disability Benefits Questionnaire (DBQ) regarding the Veteran’s right knee disability found that this right knee disability was as likely as not due to his service (i.e., service connected). The Veteran contends this rationale should support also finding entitlement to service connection, as well, for his left knee disability; however, the DBQ notes 22 years of functional impairment and a diagnosis of right knee arthritis in 2001; neither of these factors necessarily is probative regarding the origins of the left knee disability – especially since the Veteran has given vastly different times of onset for his left knee disability, and even the diagnosis of arthritis in 2001 is not supported by competent evidence, such as in the way of radiographic (i.e., X-ray) finding at that earlier point in time. See 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003, explaining that arthritis must be objectively confirmed by X-ray.   That said, a November 2016 DBQ, in which the Veteran asserted knee pain for the prior 7-8 years (so dating back to 2008/2009 or thereabouts), shows he asserted that his left knee problem was due to his right knee pain that had caused him to put more pressure on his left knee. The examiner noted there are no service treatment records (STRs) documenting left knee pain, and that the Veteran’s left knee impairment was more consistent with degenerative changes over time due to everyday use. This examiner observed the Veteran had right knee arthritis diagnosed in 2013 and in his left knee in 2016. However, the evidence in the claims file reflects that both knees were diagnosed with arthritis in 2015. In any event, that examiner did not provide adequate rationale with regards to the notion of secondary service connection, vis a vis, in terms of whether the right knee disability caused or aggravates the left knee disability. The Veteran testified during his more recent February 2020 hearing before this Board that he did not seek treatment for his left knee in service because going to sick call was considered “a weakness”, so he just lived with the pain while in service. The Board sees, however, that he did seek treatment in service for a variety of other complaints and ailments – including a rash on his face (October 1980), a rash on his arms (June 1982), abrasion on his thigh (July 1982), edema of the hands (October 1982), superficial laceration on his ear (December 1982), a twisted ankle (August 1983), a cold (May 1984), a rash on his chin (June 1984), and left leg tendonitis (October 1985). Thus, his assertion that he did not seek treatment also for chronic left knee pain because it was considered a weakness to go to sick call or that he might have been considered a malingerer is inconsistent with him doing that on those several other occasions. Finally, the claims file lacks evidence concerning the Veteran’s civilian occupation, meaning the work he has done outside of his military service, and this evidence also may be pertinent to his claim in the sense of showing the level of physical activity he has had since service in comparison to the level he had in service. After all additional evidence is obtained, a supplemental clinical opinion should be obtained addressing both direct and secondary service connection and providing the requiring underlying reasoning or rationale. Accordingly, this claim is REMANDED for the following action: 1. Obtain the Veteran’s complete Reserve service treatment records and service personnel records for his time in the Marine Corps Reserves and the Army Reserves (from approximately 1989 to 2005). Verify all ACDUTRA and INACDUTRA dates for alleged service. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS) for information that might assist in making these necessary determinations. Document all requests for information as well as all responses in the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for Kaiser Permanente for all clinical records related to his knee disabilities, including from approximately 2009 to 2017. If he provides this necessary authorization, obtain these additional records. Document all requests for these records, as well as all responses, in the claims file and appropriately notify him and his representative if unable to obtain these additional records. 3. Ask the Veteran to provide information regarding his civilian occupation since September 1986 (if this information is not found in his clinical or military personnel records or gleaned from other evidence in the file).   4. Thereafter, obtain a clinical opinion. The examiner is asked to specifically opine on the following: A. Is it as likely as not (50 percent or greater probability) the Veteran has a left knee disability that is directly related to his service – meaning that incepted during a qualifying period of service or, since involving arthritis, within a year of a qualifying period of service, or is otherwise directly attributable to a disease, an injury or an event during a qualifying period of service? B. Alternatively, is it as likely as not (50 percent or greater probability) the Veteran has a left knee disability that is secondarily related to his service and, more specifically, which was caused OR is aggravated by his service-connected right knee disability? Regarding the latter, if it is as likely as not that the Veteran’s left knee disability is aggravated (worsened) by his right knee disability, if feasible state the degree of worsening (i.e., the baseline of the disability before aggravation in comparison to the degree of severity after aggravation.) To assist in making these important determinations, the examiner should consider the pertinent evidence of record, including especially: a.) the STRs; b.) the SPRs, particularly as relating to the Veteran’s description of his duties and responsibilities in service and his contention of running on concrete, jumping in and out of trucks, marching, etc.; c.) the earliest clinical evidence of a left knee disability; d.) his post-service activity, including at his civilian job and recreationally, etc.; e.) the severity of the arthritis in his left knee when compared to that in his right knee and his assertion that his right knee disability caused him to favor his left knee; and f.) the November 2016 DBQ, in which the Veteran asserted knee pain for the last 7-8 years, so since 2008/2009 or thereabouts. When responding, regardless of whether favorably or instead unfavorably, it is essential the examiner provide rationale – preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. If adequate opinion and rationale cannot be provided without actual examination of the Veteran, schedule him for an examination, but this is left to the reviewing clinician’s discretion. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.