Citation Nr: 21065713 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 16-47 939 DATE: October 27, 2021 REMANDED Entitlement to service connection for a right knee disorder is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from June 2005 to October2005 and from February 2009 to February 2010 with service in Iraq from April 2009 to January 2010 and four years of additional service with a Reserve Component. In August 2019 the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In a May 2020 decision the Board of Veterans' Appeal (Board), among other things, denied service connection for a right knee disorder. The Veteran appealed the May 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2021 order, which incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the May 2020 Board decision to the extent that it denied service connection for a right knee disorder. Entitlement to service connection for a right knee disorder is remanded. The JMPR vacated and remanded the May 2020 Board decision because, in substance, the July 2016 VA examinations was not adequate for the following reasons (as indicated by the parties): 1. it did not consider other medical knee diagnoses found in the record to include a March 2011 diagnosis of bilateral patellar tendonitis; 2. it did not address whether the in-service event appellant reported to the examiner, that "he impacted the right knee against a radio when the vehicle he was riding in stopped suddenly," could have caused the current right knee disorder; 3. it did not address the appellant's claim that his right knee disorder is due to "duties that [he] performed as infantryman in a combat zone;" and because 4. it did not include an opinion as to whether the Veteran's right knee disorder was caused or aggravated by his service-connected back disability. Therefore, a Remand to obtain an adequate etiology opinion is required. See 38U.S.C. § 5103A(b); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In providing the requested opinion the examiner and the regional office (RO) should be mindful of the fact that the Court in Ward v. Wilkie, 31 Vet. App. 233 (2019) recently redefined the definition of aggravation to now include temporary flare-ups. The JMPR also vacated and remanded the May 2020 Board decision because, in substance, the record did not include all of the Veteran's post-2012 treatment records from Dr. Neuman of Gundersen Health System and the VistA records cited to in the VA treatment records. Therefore, the Board finds that a Remand is also required to obtained and associated with the record these records as well as any other outstanding private and VA treatment records. See 38 U.S.C. § 5103A(b); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them). The appeal is REMANDED for the following actions: 1. In order to comply with the JMPR, obtain and associate with the claims file any outstanding VA treatment records to include all VistA records cited to by the VA treatment records. 2. In order to comply with the JMPR, after obtaining all needed authorizations from the appellant associate with the claims file any outstanding private treatment records including all post-2012 records from Dr. Neuman of Gundersen Health System. If possible, the appellant himself should submit and new pertinent evidence the Board/VA does not have (if any). 3. In order to comply with the JMPR, obtain VA opinions from a suitably-qualified medical professional to address the claim of service connection for a right knee disorder. The claims file should be made available and reviewed by the examiner in conjunction with providing the opinions. After a consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: a. Provide diagnoses for all right knee disorders. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any of the diagnosed right knee disorders was caused by a disease or injury while on active duty or an injury while serving with a Reserve Component. c. Provide an opinion as to whether any arthritis in the right knee manifested in the first post-service year. d. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any of the Veteran's right knee disorders were caused by his service-connected back disability. e. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any of the Veteran's right knee disorders were aggravated by his service-connected back disability. In providing answers to the above questions the examiner should consider and discuss the service treatment records. In providing answers to the above questions the examiner should consider and discuss the competent lay claims regarding observable symptomatology. In order to comply with the JMPR, in providing answers to the above questions the examiner should consider and discuss the following: a. the other medical knee diagnoses found in the record to include a March 2011 diagnosis of bilateral patellar tendonitis; b. the Veteran's claim that his current right knee disorder was caused by when "he impacted the right knee against a radio when the vehicle he was riding in stopped suddenly" while on active duty; and c. the appellant's claim that his right knee disorder is due to "duties that [he] performed as infantryman in a combat zone" considering his records show he served in Iraq from April 2009 to January 2010 as an Infantryman and received imminent danger pay. In providing an answer to the above question the examiner should not rely solely on negative evidence. In providing answers to the above questions the examiner is advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing answers to the above questions the examiner is advised that the Court held in Ward, supra, that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). In answering all the above questions, please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.