Citation Nr: 21004730 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 13-27 208 DATE: January 28, 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 appellant is a Veteran who served on active duty from September 1975 to September 1979. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision. In May 2016, it was remanded for a hearing before the Board. In December 2016, a videoconference hearing was held before the undersigned; a transcript is in the record. In September 2017, March 2019, and September 2020 this matter was again remanded for additional development. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability is remanded. The Board is aware that this case has been advanced on the docket, and that this matter was remanded four times previously (once for a hearing, once to obtain a medical opinion, and twice for inadequate medical opinions), and regrets the delay in final adjudication inherent with yet another remand. However, there has not been substantial compliance with previous remand directives, and corrective action is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The September 2020 Board remand sought a medical opinion (with rationale) addressing whether or not the Veteran’s left knee disability was caused or aggravated by his service-connected right knee disability. The examiner was asked to specifically address (1) whether the service-connected right knee disability (and related symptoms such as weakness, instability) caused or contributed to the May 2006 workplace left knee injury, and (2) impacted adversely on (impeded) his recovery from the workplace injury, or otherwise (by related gait abnormality) aggravated the left knee disability. The Veteran had testified that he began having trouble with his left knee shortly after he injured his right knee. See December 2016 Hearing Transcript pg. 6. He also testified that he had experienced his right knee giving out, which resulted in his losing balance or falling. See December 2016 Hearing Transcript pg. 8. In the November 2020 medical opinion, the consulting provider opined that there was no indication that the Veteran’s May 2006 left knee workplace injury was in any way due to his right knee. The opinion is conclusory in stating that the Veteran’s service-connected right knee disability did not contribute to the May 2006 left knee workplace injury. The examiner also does not seem to have considered the Veteran’s lay statements alleging that a left knee disability pre-existed the May 2006 workplace injury (he alleged that a left knee disability was caused by overuse of the left knee from favoring the right knee). See December 2016 Hearing Transcript pg. 6. The examiner did not explain why instability of a knee would not contribute to a fall causing injury to the other knee, or explain why gait impairment due to one lower extremity disability would not contribute to development of pathology in the contralateral joint. The opinion therefore does not adequately consider the Veteran’s lay statements pertaining to whether his left knee disability was caused or aggravated by his service-connected right knee disability. See Miller v. Wilkie, No. 16-3046, 2019 U.S. App. Vet. Claims LEXIS 923. Accordingly, development for an adequate medical opinion remains necessary. The Board notes that the September 2020 Board remand specifically sought a medical opinion by an orthopedist, and the medical opinion provided in response was provide by an internal medicine physician, and not (as requested) an orthopedist. The request was made because a clinician in orthopedics presumably would be better qualified to offer the detailed explanation sought. The opinion received is inadequate because it does not include rationale fully responsive to the remand directives. If possible, the opinion sought below should be by a clinician with some experience in orthopedics. As there has not been substantial compliance with the September 2020 remand directives, the matter is REMANDED for the following: Arrange for the Veteran’s record to be forwarded to an appropriate clinician (in orthopedics, if at all possible) for review and a medical advisory opinion regarding the etiology of his left knee disability. The consulting provider is asked to: (a.) Identify (by diagnosis) each chronic left knee disability entity shown during the pendency of the instant claim. (b.) Identify the likely etiology for each left knee disability diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that the disability was caused or aggravated by the Veteran’s service-connected right knee disability? The opinion and rationale must specifically address (i) whether the service-connected right knee disability (and related symptoms such as weakness, instability) caused or contributed to the May 2006 workplace left knee injury (as the Veteran has alleged), and (ii) whether the right knee disability impacted adversely on (impeded) recovery from the workplace injury, or otherwise (through gait abnormality) aggravated the left knee disability. (c.) If it is determined that the Veteran’s left knee disability was not caused or aggravated by his right knee disability, identify the etiology for the left knee disability that is considered to be more likely, and explain why that is so. All opinions must include rationale, with citation to supporting clinical data and medical principles (and if medical principles are invoked, citation to supporting medical text, if possible). All theories on entitlement raised by the Veteran must be addressed. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Staskowski, Associate 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.