Citation Nr: 21003196 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-23 885 DATE: January 19, 2021 REMANDED Entitlement to service connection for a left knee disability, including as secondary to a service-connected right knee disability, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1972 to May 1976. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an April 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The claims were previously addressed in the Board’s June 2018, July 2019, and September 2020 decisions. 1. Entitlement to service connection for a left knee disability, including as secondary to a service-connected right knee disability, is remanded. A remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran’s service-connected right knee disability is identified as residuals of a medial meniscectomy. The symptoms associated with this condition, as documented in April 2014, April 2019 and October 2019 VA knee conditions examinations, include reduced range of motion, painful motion, reduced muscle strength, recurrent effusion, and frequent locking. These examinations confirm the Veteran uses a knee brace and a cane. In September 2020, the Board remanded the Veteran’s claim of entitlement to service connection for a left knee disability and requested, in part, an etiology opinion to evaluate whether the left knee disability, diagnosed as degenerative joint disease, was secondary to the service-connected right knee disability. In September 2020, a VA examiner opined that the Veteran’s left knee condition was less likely than not proximately due to or aggravated beyond its natural progression by a right knee disability because medical literature did not “establish a connection between a meniscal tear in one leg (knee) causing contralateral degenerative joint disease in the contralateral side.” The examiner did not discuss the Veteran’s specific right knee symptomatology and whether these symptoms resulted in compensation by or additional strain to the left knee. The examiner failed to provide the analysis necessary to fully evaluate the claim as required by the prior remand. An additional etiology opinion must be obtained. See Stegall, supra. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. In September 2020, the Board found the issue of entitlement to a TDIU was raised by the record under the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). The claim was remanded so that the issue could be developed. A September 2020 letter to the Veteran indicates the RO has begun to develop the issue of entitlement to a TDIU under Rice. However, the issue has not yet been addressed in a rating decision. The issue is remanded for continued action at the RO. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s left knee degenerative joint disease is at least as likely as not proximately due to or aggravated beyond its natural progression by his service-connected right knee disability. The examiner must consider and discuss all symptomatology associated with the right knee (including limitation of motion, painful motion, muscle weakness, effusion, and locking) and the interaction between the disabled right knee and any altered gait caused by the right knee and possible additional stress placed upon the left knee or compensation by the left knee which might contribute to the onset or progression of left knee degenerative joint disease. Stating that medical literature has not established a connection between a meniscal tear in one knee and disability in the opposite knee, without discussion and consideration of the Veteran’s specific symptoms, will be deemed inadequate. Aggravation and causation are distinct theories and must be addressed separately and independently of each other. The term “aggravation” means an increase in the claimed disability; that is, a worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. If aggravation is found, the examiner must note the baseline level of severity of any left knee disability prior to aggravation by the service-connected right knee disability. A complete rationale must be provided for all opinions expressed. 2. Continue to develop and adjudicate the issue of entitlement to a TDIU per the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeanne Celtnieks 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.