Citation Nr: 21003148 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 13-11 206 DATE: January 19, 2021 REMANDED 1. Entitlement to service connection for a psychiatric disability, to include major depressive disorder, to include as secondary to a service-connected left knee disability is remanded. 2. Entitlement to service connection for left peroneal axonal neuropathy, claimed as left foot drop, to include as secondary to a service-connected left knee disability is remanded. 3. Entitlement to a rating in excess of 30 percent for a post total knee replacement (TKR) left knee disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from February 1985 to November 1989. These matters are before the Board of Veterans’ Appeals (Board) on appeal from October 2011 (denying service connection for depression) and February 2012 (denying service connection for left foot drop and a higher rating for a left knee disability) Department of Veterans Affairs (VA) rating decisions. In April 2015, a Travel Board hearing was held before the undersigned; a transcript is in the Veteran’s claims file. In July 2015 the Board remanded the case for further development. 1. Entitlement to service connection for a psychiatric disability, to include major depressive disorder, to include as secondary to a service-connected left knee disability. The July 2015 Board remand, in part, directed the agency of original jurisdiction (AOJ) to obtain an adequate medical advisory opinion addressing whether the Veteran’s claimed psychiatric disability was aggravated by his left knee disability. A July 2016 addendum opinion did not address aggravation. In a November 2018 VA addendum opinion the consulting psychologist included rationale that primarily discusses causation, not aggravation. Caselaw has established that the language “less likely than not” “is related to” [the service connected left knee disability] inadequately addresses the concept of aggravation. Furthermore, the ultimate conclusion states “ is it at LESS as likely as not (i.e., a 50% or better probability) that the [V]eteran’s depressive disorder is AGGRAVATED beyond it’s normal progression by his service-connected knee disability.” does not in fact actually provide an opinion (but merely appears to restate the question posed. It is not responsive to the Board’s remand instruction, and corrective action is required. 2. Entitlement to service connection for left peroneal axonal neuropathy, claimed as left foot drop, to include as secondary to a service-connected left knee disability. The July 2015 Board remand also sought to obtain a medical advisory opinion addressing whether the Veteran’s left foot disability was caused or aggravated by his service-connected left knee disability. A November 2018 VA medical opinion received in response states that the Veteran’s left foot condition had resolved based on a normal EMG in 2015. He stated it is “less likely as not” that the left knee disability caused or aggravated the resolved peroneal axonal neuropathy. The Board finds the opinion inadequate for decision-making purposes. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Notably, the record contains medical evidence that the Veteran did have a finding of left foot drop on physical examination during the pendency of this appeal. Thus, the claim may not be denied on the basis that a current disability is not shown. Furthermore, the provider did not offer any rationale to support the conclusion that the Veteran’s left foot condition was not aggravated by his left knee condition (and did not identify a likely etiology of the left foot drop that was found on physical examination). The opinion is conclusory and inadequate for rating purposes. The questions remaining to be resolved in this matter are: (a) Considering a finding on physical examination of left foot drop did the Veteran have a left foot drop disability [that may have later resolved] during the pendency of the instant claim? and (b) If a left foot drop disability is found during the pendency of this appeal, was it caused or aggravated by the service connected left knee disability (and its treatment? An addendum medical advisory opinion is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Entitlement to a rating in excess of 30 percent for a left knee disability. The VA examiner who evaluated the Veteran’s knees in February 2020 indicated that there was evidence of pain on passive motion, but not with non-weight bearing. The examiner did not report ranges of motion on weight-bearing vs. non weight-bearing and passive motion. (Such ranges of motion are essential to properly assess where there is an intermediate level of weakness/painful motion.) See Correia v. McDonald, 28 Vet. App. 158 (2016). Therefore, a remand for another (fully adequate) examination is necessary. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following: 1. Secure for the record updated (to the present) completed clinical records of all VA and private evaluations and treatment the Veteran has received for his left knee disability. He must assist in the matter by identifying all providers and submitting authorizations for VA to secure any private providers identified. 2. Then arrange for an orthopedic examination of the Veteran to assess the current severity of his post-TKR left knee disability. The Veteran’s claims file must be reviewed by the examiner in conjunction with the examination. The findings must include reports of range of motion studies for pain on BOTH active and passive motion AND in weight-bearing and non-weight-bearing. [If the knee cannot be tested on “weight-bearing,” the examiner must indicate that such testing cannot be done, and explain why that is so.] 3. Arrange for the Veteran's record to be forwarded to an appropriate clinician (psychologist or psychiatrist) for review and an addendum medical advisory opinion addressing whether any current psychiatric disability diagnosed (to specifically include a depressive disorder) was caused or aggravated [the opinion must address the concept of aggravation, which is defined as a chronic increase in severity (of symptoms/impairment) beyond natural progression of the disability] by his post-TKR left knee disability. . The addendum opinion should respond to the following: (a) Is it at least as likely as not (i.e., a 50% probability or greater) that the Veteran's psychiatric disability, and specifically a depressive disorder was caused or aggravated beyond natural progression by his service-connected left knee disability? (b) If the opinion indicates that the knee disability did not cause the psychiatric disability, identify the etiology for the psychiatric disability that is considered to be more likely, and explain why that is so. (c) If the opinion is that the left knee disability did not cause the psychiatric disability, but aggravated it, to the extent possible, identify the baseline level of the severity of the disability before the aggravation occurred and the severity of the disability when the aggravation was completed. All opinions must include rationale that cites to supporting factual data and medical principles. 4. Also arrange for the Veteran’s record to be forwarded to an appropriate clinician (e.g., in neurology) for review and an addendum opinion addressing/clarifying (considering the notation in the record that on physical examination during the pendency of this appeal the Veteran was found to have a left foot drop, and also that later diagnostic studies did not find pathology supporting such diagnosis): (a) Whether at any time during the pendency of this appeal the Veteran had a left foot drop disability [including one that may have ultimately resolved]. (b) If a left foot drop disability is found to have been present during the pendency of this appeal, is it at least as likely as not (a 50% probability or greater) the foot drop was caused or aggravated by the Veteran’s post-TKR left knee disability (to include its treatment)? If not, identify the etiology for the foot drop that is considered to be more likely, and explain why that is so. All opinions must include a complete explanation of rationale, with citation to supporting factual evidence and medical principles. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Baker, 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.