Citation Nr: 21004113 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 15-31 156A DATE: January 26, 2021 REMANDED Entitlement to service connection for a right knee condition, to include as secondary to service-connected left knee meniscal tear with osteoarthritis (left knee condition) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1979 to April 1983. The Veteran also served in the Army National Guard from September 2005 to July 2007 and from June 2008 to October 2009. This matter come before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2019. A transcript of the hearing is of record. The Board remanded this matter in August 2019. However, the Board finds that the RO did not substantially comply with the directives set forth in the August 2019 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a right knee condition, to include as secondary to service-connected left knee meniscal tear with osteoarthritis (left knee condition), is remanded. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall, 11 Vet. App. at 268. Regrettably, the Board finds that further remand is necessary in this case under Stegall. Pursuant to the August 2019 remand, a VA examination and opinion were obtained for the Veteran’s right knee condition. The Board directed that the VA examiner consider the Veteran’s lay statements that he overcompensated for his left knee, as well as the June 2009 service treatment record showing chronic right knee pain. In an October 2020 VA examination, diagnoses of bilateral knee meniscus tear and bilateral degenerative arthritis were noted. In a separate October 2020 VA opinion, the examiner opined that the Veteran’s right knee condition was less likely than not due to service. The examiner noted that the Veteran’s entrance knee physical from January 1979 was normal. There were a few notes starting from June 2009 that demonstrated that the Veteran was seen for complaint of right knee pain. A note from June 2009 reported that the Veteran had chronic right knee pain; therefore, a right knee x-ray was ordered. The Veteran’s physical exam of his right knee was not reported in the June 2009 medical note. A note from July 2009 reported that the Veteran had right knee pain, in which a right knee x-ray was reviewed. A note from May 2015 stated that the Veteran reported right knee pain, in which an orthopedic surgeon stated that the Veteran should have right knee surgery due to a meniscal tear in his right knee. His physical exam demonstrated +ljt/mjlt, and crepitus. The examiner said that the Veteran’s exit exam was not available in his claims file. There were no additional records available that demonstrated chronic treatment for right knee pain. The examiner further opined that the Veteran’s right knee condition was less likely than not proximately due to or the result of the Veteran’s service-connected left knee condition. The examiner’s rationale was the same as provided for the question of direct service connection. The examiner also could not determine a baseline level of severity and opined that the Veteran’s right knee condition was not at least as likely as not aggravated beyond its natural progression by his service-connected left knee condition. The examiner again provided the same rationale for his opinion as provided in the question of direct service connection. In another October 2020 VA opinion, the examiner provided an additional opinion for secondary service connection. The examiner opined that the Veteran’s right knee condition was less likely than not proximately due to or the result of the Veteran’s service-connected left knee condition. The examiner referenced to Up to Date and said that risk factors for osteoarthritis included age, female gender, genetics, joint injury, anatomic factors, a body mass index greater than 30, and heavy physical workload. Additionally, causes of meniscal tear were caused by a twisting injury. Chronic degenerative tears occurred in older patients and could occur with minimal twisting or stress. Therefore, the examiner determined that the Veteran’s right knee condition was not due to the result of left knee meniscal tear with osteoarthritis. Initially, the Board finds that the examiner did not consider or discuss the Veteran’s lay statements for the questions of secondary service connection and aggravation. The Board finds this to be a Stegall violation. Additionally, the Board finds the examiner’s opinion on direct service connection inadequate because it was based solely on a lack of contemporaneous records. A lack of contemporaneous records is not a bar to service connection. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran’s ability to prove his claim of entitlement to disability benefits based on that competent lay evidence”). Finally, the Board finds the examiner’s opinion on secondary service connection, including aggravation, is inadequate. The examiner’s first opinion for secondary service connection repeated the same inadequate rationale as for direct service connection and the second opinion is generic in nature, citing to only studies and not providing supportive evidence specific to this Veteran. Therefore, on remand, an additional VA opinion should be obtained that addresses the Veteran’s lay statements as well as is specific to the Veteran and his condition. The examiner must note that a lack of contemporaneous records is not an absolute bar to service connection. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 2. Then, obtain an additional VA opinion from an appropriate examiner to determine the etiology of the Veteran’s right knee condition. The claims file and a copy of this remand should be made available to the examiner. Following a review of the pertinent evidence, the examiner must determine the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right knee condition is related to service. The examiner must note that a lack of contemporaneous records is not an absolute bar to service connection. (b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right knee condition was caused or aggravated by his service-connected left knee condition. A clear rationale must be provided for all opinions expressed. The examiner must consider and discuss the Veteran’s lay statements that he overcompensates for his left knee condition, as well as the June 2009 service treatment record showing chronic right knee pain. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saudiee Brown 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.