Citation Nr: 21061653 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 15-21 845 DATE: October 4, 2021 REMANDED Entitlement to service connection for left knee patellofemoral syndrome (claimed as bilateral knee condition, chronic pain) is remanded. Entitlement to service connection for right knee patellofemoral syndrome (claimed as bilateral knee condition, chronic pain) is remanded. Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1976 to September 1980, and from September 2005 to December 2006. These matters come to the Board of Veterans' Appeals (Board) from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In August 2015, the Veteran testified at a video hearing before the undersigned. A transcript of his testimony is associated with the claims file. In July 2018 and April 2020, the Board respectively remanded these appealed issues for additional development. The Board's prior remand directives and the subsequent actions of the Agency of Original Jurisdiction (AOJ) will be discussed below. 1. Entitlement to service connection for left knee patellofemoral syndrome (claimed as bilateral knee condition, chronic pain) is remanded. 2. Entitlement to service connection for right knee patellofemoral syndrome (claimed as bilateral knee condition, chronic pain) is remanded. While further delay is regrettable, the Board concludes that, for the reasons discussed below, that another remand is necessary to ensure substantial compliance with the Board's prior remand directives. In sum, the Board's April 2020 prior remand concluded that the October 2019 VA opinions concerning the nature and etiology of the Veteran's knee disabilities were inadequate because (1) merely stating that the Veteran does not currently have a knee disability is an insufficient rationale for a negative medical opinion since patellofemoral syndrome diagnoses were rendered during the June 2013 VA knees and lower legs DBQ examination, which is during the relevant appeal period, and (2) that the Veteran's competent and credible reports of experiencing knee pain, during and since service, which he testified to during his August 2015 Board testimony, were not considered by the October 2019 VA examiner. With regard to whether the Veteran's right and left knee disabilities have been aggravated by his service-connected back disability, the July 2020 VA examiner's opinion that "[c]urrent severity of L spine ddd and radic is not sufficient to impact the knees dx and ESPECIALLY SINCE NO DX MADE FOR HIS KNEES on VA exam 10/ 2019 AND THEREFORE no + nexus" is also an inadequate nexus opinion, as the Board finds it conclusory since it fails to provide a scientific/medical explanation stating why the Veteran's knee disabilities and back disability are found to be unrelated. As such, the July 2020 VA opinions are still inadequate for the purpose of readjudicating the Veteran's appealed issues. 38 U.S.C. § 1111; 38 C.F.R. §§ 3.304 (b), 3.306; Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Consequently, another remand for the purpose of obtaining an adequate VA examination, including comprehensive medical opinions are necessary before these bilateral knee claims can be adjudicated on their merits. Barr v. Nicholson, 21 Vet. App. 303 (2007). 3. Entitlement to service connection for hypertension is remanded. Although a March 2013 VA examination reflects that the Veteran was diagnosed with hypertension in 2006, the examiner also opined that that there is no positive nexus of the Veteran's hypertension disability to his active service, primarily because the Veteran was not diagnosed or treated for hypertension during such service. The Board finds this rationale inadequate and conclusionary as lack of in-service treatment or symptoms cannot be the primary basis for a negative nexus opinion pursuant to the holdings in Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Further, the Agency of Jurisdiction (AOJ) reports that the Veteran did not respond to letters dated September 6, 2019, and May 8, 2020, requesting him to complete and return VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA), and VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs (VA), authorizing such request for any outstanding private treatment records. Given that this matter is being remanded for a VA examination, the Board finds that the Veteran should be afforded one final opportunity to provide such authorization necessary for obtaining any outstanding treatment records associated with his hypertension disability, prior to the Board's readjudication of this issue. Therefore, the Board finds that a remand for a new examination and to obtain any outstanding treatment records is warranted. However, the Board also notes that given these facts, the Veteran must fully cooperate with VA's requests in its effort to substantiate his appeal, as VA's duty to assist him in doing so is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). The matters are REMANDED for the following action: 1. With the Veteran's assistance, obtain all outstanding treatment records in relation to the Veteran's treatment for hypertension. If the Veteran has additional private treatment records, he should be afforded an appropriate opportunity to submit them. The Veteran is hereby informed that he has a duty to cooperate in the development of his claim, and failure to do so without good cause may result in the denial of his claim. Wood v. Derwinski, 1 Vet. App. 191 (1991); 38 C.F.R. § 3.655. 2. Schedule a VA examination with an examiner with the appropriate expertise to determine the current nature and etiology of any diagnosed right and left knee disabilities. Any and all studies, tests, and evaluations that are deemed necessary by the VA examiner should be performed. The entire claims folder, including a copy of this remand should be made available and should be reviewed by the examiner. Following a complete review of the record, the examiner is asked to provide the following responses: a) State whether the Veteran has a current diagnosis of any right knee disability. b) State whether the Veteran has a current diagnosis of any left knee disability. c) If so, state whether it is at least as likely as not (a 50 percent or better probability) that any current or previously diagnosed patellofemoral syndrome of both the right and left knee was incurred during the Veteran's active service. d) Also state whether the Veteran has any current or previously-diagnosed patellofemoral syndrome of both the right and left knee that (i) is proximately due to the Veteran's service-connected back disorder or (ii) was aggravated by the Veteran's service-connected back disorder. The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible 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. e) If the examiner determines that the Veteran does not have a current diagnosis of any right and/or left knee disability, the examiner must explain whether the previous diagnoses of right and left knee patellofemoral syndrome were inaccurate/ misdiagnoses, and provide a clear and through explanation for such inaccuracies/misdiagnoses consistent with the facts. f) Further, if the examiner determines that the Veteran does not have any current right and/or left knee disability, the examiner should also: i) state whether the Veteran's reported symptoms of chronic progressive pain on his right and left knee result in functional impairment that impacts the Veteran's earning capacity; and ii) provide an opinion as to whether it is at least as likely as not (i.e. 50 percent probability or greater) that the Veteran's right and left knee symptoms that cause functional impairment with regards to his earning capacity were caused by the Veteran's active military service. 3. Schedule the Veteran for a VA examination with an appropriately qualified clinician to determine the current nature and etiology of any diagnosed hypertension. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. a) The examiner must opine whether any diagnosed hypertension is at least as likely as not (50 percent or greater probability) etiologically related to the Veteran's active service. b) The examiner must also opine whether any diagnosed hypertension is at least as likely as not (50 percent or greater probability) proximately due to or the result of (i.e. was aggravated by) the Veteran's service-connected posttraumatic stress disorder (PTSD). The examiner must address both causation and aggravation in providing the requested opinion. All opinions should be supported by detailed rationale, including identification and explanation of the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The examiner should consider the entire claims file, and discuss the Veteran's lay statements regarding the nature, onset, and chronicity of symptoms. The examiner is advised that the Veteran is competent to report symptoms, and that his reports must be considered in formulating the requested opinion. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner is reminded that "at least as likely as not" does not mean "within the realm of medical possibility", but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Following the above development, and any other action needed to ensure substantial compliance with this Remand, the AOJ must then adjudicate the Veteran's claims. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.