Citation Nr: 21065545 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 16-40 220 DATE: October 26, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for right knee meniscectomy with post-traumatic arthritis is remanded. Entitlement to service connection for a cardiovascular disability is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to compensation under 38 U.S.C. 1151 for left leg disability is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1978 to January 1981. This case was previously before the Board in July 2019, at which time it was remanded for further development. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an initial rating in excess of 10 percent for right knee meniscectomy with post-traumatic arthritis is remanded. Following the issuance of the supplemental statement of the case (SSOC) in March 2020, records were added to the file by the VA, including an examination of the knees in March 2021. These records were not reviewed by the AOJ, and no SSOC was provided. As these records were not added by the Veteran, automatic waiver of AOJ review does not apply. Remand is necessary to allow the AOJ to review the new evidence and readjudicate the claim. 2. Entitlement to service connection for a cardiovascular disability is remanded. 3. Entitlement to service connection for diabetes mellitus is remanded. The VA medical opinions of record state that the Veteran's cardiovascular disability and diabetes mellitus were less likely than not caused or aggravated by the Veteran's service-connected sleep apnea. The stated rationale was that sleep apnea "shouldn't cause or aggravate" diabetes or heart disease. No explanation was provided for why this is the case or whether there is in fact any causation or aggravation in the instant case. The rationale is inadequate, and remand is necessary for a new opinion. 4. Entitlement to compensation under 38 U.S.C. 1151 for left leg disability is remanded. The Veteran received a VA examination in March 2020. The examiner opined that the Veteran's left leg disability was less likely than not caused or worsened by VA treatment. The examiner stated that there was no carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. However, no explanation was provided for this opinion beyond the mere statement. The rationale is inadequate, and remand is necessary for a new opinion. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's diabetes mellitus and heart disability are at least as likely as not related to proximately due or aggravated by a service-connected disease or injury, to include sleep apnea. 2. Schedule the Veteran for a VA examination by an appropriate examiner to determine the nature and etiology of his left leg disability. The examiner must provide an opinion as to whether it is at least as likely as not Veteran's left leg disability is the result of care and treatment by VA, including but not limited to his left leg surgery. If so, the examiner should provide an opinion with respect to whether the proximate cause of any such additional disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgery; or whether such disability was due to an event not reasonably foreseeable. The examiner should also address whether any additional disability was proximately caused by an event not reasonably foreseeable and whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures. The complete rationale for all opinions expressed should be fully discussed in the examination report. 3. The AOJ should review all evidence received since the March 2020 SSOC. After the above development, and any additionally indicated development, has been completed, readjudicate the claim. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Creegan, Amanda 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.