Citation Nr: 21061753 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 15-35 054 DATE: October 5, 2021 REMANDED Entitlement to service connection for a left knee disorder, to include as secondary to service-connected right knee disorder, is remanded. Entitlement to an initial disability rating greater than 10 percent for service-connected right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1986 to May 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2013 and August 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The RO in June 2013 reopened the Veteran's claim for a bilateral knee disorder and denied service connection. A rating decision of August 2015 granted service connection for a right knee disability, at 10 percent disabling, effective February 19, 2013. In October 2018, the Board referred the issue of an increased rating greater than 10 percent for a right knee disorder, to the RO to issue a statement of the case (SOC). In May 2020, the RO issued an SOC, and the Veteran filed a timely VA Form 9. Though the RO did not certify the issue for appeal, the Veteran has perfected his appeal. Certification or lack thereof does not confer jurisdiction on the Board. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Thus, the Board takes jurisdiction of the increased rating claim. The issue of service connection for a left knee disorder was previously before the Board in October 2018 and was remanded. The RO was mandated to obtain any outstanding treatment records and afford the Veteran a VA examination addressing direct and secondary service connection. Treatment records were associated with the claims file. In October 2019, the Veteran was afforded a VA medical examination, and in May 2020, a medical opinion was procured. The Board, as is explained below, finds the opinion incomplete. Thus, there has not been substantial compliance with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected right knee disorder, is remanded. The Veteran has been diagnosed with patellar tendon rupture status post repair and degenerative arthritis, bilateral knee. He asserts that his left knee disability is a result of Basic Training excises and playing basketball. In the alternative, he argues secondary service connection to his right knee disability. During a July 2015 VA Knee and Lower Leg Conditions examination, the examiner diagnosed patellar or quadriceps tendon rupture. During an October 2019 Knee and Lower Leg Conditions examination, the examiner diagnosed degenerative arthritis of the left knee. In a May 2020 opinion, the examiner provided a negative nexus for direct service connection. He also found that the Veteran's left knee disability was neither caused nor aggravated by the right knee disorder. Specifically addressing the aggravation prong of the secondary service connection claim, the examiner explained that "the Veteran's left knee patellar tendon rupture s/p repair which was sustained in 1995 was directly related to and caused by an injury sustained post-service and is not related to his right knee disability. The left knee arthritis that developed was secondary to the trauma and repair caused by the patellar tendon rupture s/p repair and not related to his right knee disability. There is no objective evidence present to suggest that left knee condition was aggravated by right knee disability." In a September 2020 correspondence, the Veteran's attorney disputes the above finding. Notably, the attorney pointed out that the examiner found that "the left knee was separately injured [but failed] to address whether the left knee was injured because of being already compromised due to the right knee or whether the left knee injury was prolonged due to the right knee." The Board agrees. Thus, the rationale for the aggravation prong of the secondary service connection claim is wanting. Therefore, a supplemental opinion is warranted for an adequate rationale. Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Entitlement to an initial disability rating greater than 10 percent for service-connected right knee disorder is remanded. In his May 2020 Form 9, the Veteran's attorney argues that the Veteran's right knee disability had worsened with an impact on his daily activities. Additionally, treatment shows show that the Veteran has been diagnosed with osteoarthritis of the bilateral knees and had been receiving cortisone shots. The Veteran was last afforded a VA examination addressing the right knee in July 2015. VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of his service-connected disability. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability and the available evidence is too old or that the current rating may be incorrect. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); 38 C.F.R. § 3.326 (a). As there is competent medical and lay evidence that the Veteran's right knee disability has worsened since July 2015, a contemporaneous VA examination is warranted. Accordingly, the matters are REMANDED for the following action: 1. Provide the Veteran's claims file to a qualified clinician to provide a supplemental opinion for his left knee disorder. A physical or telehealth examination of the Veteran is only required if deemed necessary by the clinician. The entire claims file and a copy of this remand must be made available to the clinician to review. The clinician is asked to opine as to the following: i. Whether the Veteran's left knee disability at least as likely as not (50 percent or greater probability) had its onset in service or related to any incident therein; or if arthritis is diagnosed, manifested within one year of service. ii. Whether the Veteran's left knee disorder is at least as likely as not (50 percent or greater probability) proximately due to or the result of his service-connected right knee disorder. iii. Whether the Veteran's left knee disorder is at least as likely as not (50 percent or greater probability) aggravated (increased in severity beyond the natural progression of the disorder) by his service-connected right knee disorder. The clinician is reminded that for a secondary service connection claim, a VA medical opinion should not combine causation and aggravation; separate findings and rationales should be provided for each one. Atencio v. O'Rourke, 30 Vet. App. 74, 90 (2018). The clinician must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above-requested opinions cannot be made without resorting to speculation, the clinician must state this and provide a rationale for such a conclusion. 2. Schedule the Veteran for an examination to determine the current severity of his right knee disorder. The entire claims file and a copy of this remand must be made available to the examiner for review. Full range of motion testing must be performed where possible. The joint(s) involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain the basis for this decision. If the Veteran reports flare-up episodes, the examiner must assess any additional functional loss during flare-ups. If an assessment is not possible without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner must elicit relevant information as to the Veteran's flare ups or ask him to describe the additional functional loss, if any, he has during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record, including the Veteran's lay information, or explain why he or she cannot do so. Sharp v. Shulkin, 29 Vet. App. 26 (2017). It is not sufficient to abstain from providing an opinion because the Veteran is not examined after repetitive use over time or not examined during a flare up. The examiner must provide all findings, along with a complete rationale for any opinions provided. 3. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case, and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.