Citation Nr: 21002173 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-24 635 DATE: January 12, 2021 REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability as secondary to a left knee disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served in active duty service with the Marine Corps from April 1971 to April 1973. This matter is on appeal from a February 2014 and September 2015 rating decision. The Veteran was afforded a May 2019 hearing before the undersigned Judge. A transcript of the hearing has been associated with the claims record. The Board finds that remand is warranted for additional development. At the May 2019 hearing, the Veteran testified that they were specifically contending that the right knee disability was secondary to the claimed left knee disability from a May 1971 in-service injury. The Veteran testified that he fell out of the top bunk onto his left knee causing it to swell; and stated he continued his training and his service on his swollen knee without further treatment. Review of the Veteran’s service treatment record (STR) shows a May 1971 complaint regarding his knee. The Board remanded this appeal in March 2020 for additional development. The Board found that a January 2014 VA examination regarding the Veteran’s claimed left and right knee disabilities was inadequate as it was based upon an inaccurate factual premise by addressing the etiology of the right knee while providing no opinion regarding the etiology of the left knee or addressing the theory of secondary service connection of the right knee in relation to the left knee disability. The Veteran was afforded an August 2020 VA examination. The VA examiner opined the left knee disability was less likely than not incurred in or caused by the Veteran’s claimed inservice injury, event or illness. The examiner opined that there was no medical record to show diagnosis, treatment for a knee condition or any related knee condition while the Veteran was still in service. However, while the examiner noted that they reviewed the Veteran’s claims record and noted the dates of entry and separation from active duty service, the examiner did not address the May 1971 complaint regarding the Veteran’s knee in his STRs, or the Veteran’s testimony regarding a fall from the top bunk onto his left knee. The same August 2020 VA examiner opined that the Veteran’s left knee disability was proximately due to his right knee condition. However, the Board notes that the Veteran’s contentions were that his right knee disability was caused by his left knee disability; the August 2020 VA examiner did not provide an opinion to address the theory of secondary service connection regarding the Veteran’s right knee disability in relation to his left knee disability. The Board notes that a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461(1993). As the August 2020 VA examiner incorrectly opined there were no records in service relating to a knee condition without addressing the May 1971 complaint for a knee; as such, the Board finds the opinion inadequate. Under these circumstances, the Board finds that another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where remand instructions are not followed, the Board errs as a matter of law when it fails to ensure compliance). Therefore, the Board finds that remand for compliance with the March 2020 Board remand instructions is warranted. As the outcome of the claim could have a significant impact on the Veteran’s claim of entitlement to TDIU, the issue is also inextricably intertwined. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Return the claims file to the VA examiner who provided the August 2020 opinions, if available, for an addendum opinion. The need for another examination is left to the discretion of the examiner providing the opinion. (a.) The examiner should provide an opinion regarding whether it is at least as likely as not(e.g., a 50 percent or greater probability) that the Veteran has a current left knee disability, and if so, whether it had its onset in or is etiologically-related to the Veteran’s active service. (b.) If it is found that that the Veteran has a current left knee disability that is related to service, the examiner should also provide an opinion examiner should also provide an opinion as to whether it is at least as likely as not(at least a 50 percent probability) that the Veteran has a current right knee disability that is caused or aggravated by his left knee disability. If the examiner finds that the Veteran has a right knee disability that has been permanently aggravated/worsened by a service-connected left knee disability, to the extent feasible, the degree of worsening should be identified. (c.) In rendering the requested opinions, the VA examiner should identify and discuss any pertinent medical and lay evidence to include the May 1971 STR record complaint regarding the Veteran’s knee; a January 2010 private physician statement that the Veteran may have sustained a bone fragment in his left knee from a fall on concrete in service; and the Veteran’s May 2019 testimony that he suffered a fall from the top bunk and landed on his left knee in service. (d.) The examiner is also advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. (e.) A complete rationale is requested for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.