Citation Nr: 21066009 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 15-09 883 DATE: October 28, 2021 REMANDED Entitlement to service connection for right knee degenerative joint disease (DJD) is remanded. REASONS FOR REMAND This case originally came before the Board of Veterans' Appeals (Board) on appeal of a June 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a February 2016 decision, the Board remanded the issue of entitlement to right knee DJD for further development. In August 2017, the Board denied entitlement to service connection for right knee DJD. The Veteran appealed the August 2017 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2018 Order, the Court granted a Joint Motion of the parties, vacated the Board's August 2017 decision, and remanded the case to the Board for action consistent with the Joint Motion. In September 2018, the Board remanded the issue of entitlement to right knee DJD. In May 2020, the Board again denied entitlement to service connection for right knee DJD. The Veteran appealed the May 2020 Board decision to the Court. In a June 2021 Order, the Court granted a Joint Motion of the parties, vacated the Board's May 2020 decision, and remanded the case to the Board for action consistent with the Joint Motion. Service Connection Right Knee DJD The Veteran asserts that his right knee DJD is related to his active service. The Veteran's service treatment records (STRs), specifically his July 1958 induction examination, reveal that he had a fracture of the upper end of the right femur in 1949. Additionally, the July 1958 examination noted that the Veteran was treated by closed reduction, was asymptomatic, and that his right leg measured 32 and 14 inches and his left leg measured at 32 and 12 inches. In the Veteran's July 1958 report of medical history, the Veteran reported that he had no bone, joint, or other deformity, or trick or locked knee. In September 1958, the Veteran reported that his leg and knee hurt during physical training; at that time, he was diagnosed as having a gross deformity of the right knee. During a September 1958 orthopedic consultation, the Veteran reported persistent knee pain that progressively worsened with advanced training and buckling of the right knee. During that consultation, the Veteran was assessed to have one inch of shortening of the right lower extremity and marked genu recurvatum of the right knee. Additionally, during a March 1960 in-service consultation, the examiner noted that the Veteran began to experience knee pain and frequent episodes of buckling during basic training. The examiner further noted that the Veteran's knee pain continued and worsened even after being placed on an L3 profile. The examiner also noted evident shortening of the right lower extremity of approximately one and 14 inches and an unusual appearance of the right knee. In March 1960, x-rays of the right knee confirmed a clinical impression of an abnormality of the upper end of the tibia, and tibial plateau sloped forward 20 degrees. Ultimately, the examiner indicated that the Veteran's marked knee disability was secondary to his fracture sustained in October 1949. In a July 2019 VA addendum opinion, a VA examiner opined that the Veteran's claimed pre-existing right knee disability, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The VA examiner noted that the later finding of altered tibial plateau, as described in the 1960 orthopedic consultation, suggested simultaneous knee and hip injury. Additionally, the VA examiner noted that the hyperextension described as genu recurvatum can in certain circumstances, not described in this case, be due to ligament laxity especially in a younger patient. The VA examiner also noted that there was no record in the STRs to show an injury, incident, or series of events, that led to a leg length discrepancy or any aggravation of the condition in general. Further, the VA examiner stated that measurements done with the patient either prone or standing are subject to error given his stance, pain level, and physician error. The VA examiner assessed there was no evidence that the Veteran's leg measurements were done in a proper manner with actual radiographic angle and length measurement. The Board finds that there is insufficient evidence as to whether the Veteran's right knee disability, which was not noted on entrance, clearly and unmistakably preexisted his active service. In this regard, the notations of a prior right femur fracture and shortened right leg during the Veteran's July 1958 induction examination do not reflect a prior right knee injury or condition. Additionally, the examiner's notation of "old" to describe the Veteran's right femur fracture during the September 1958 orthopedic consultation, but not his genu recurvatum, suggests a new diagnosis. Further, the Board notes that the September 1958 orthopedic examiner's specific association of the Veteran's shortened right lower extremity to an old fracture, but lack of association for his genu recurvatum, suggests that those diagnoses may have had a different etiology and onset. In contrast, the Board acknowledges the March 1960 consultation report, which indicated that the Veteran's marked knee disability was secondary to his October 1949 fracture. Based on the foregoing, the Board finds that there is conflicting evidence as to whether the Veteran's right knee disability clearly and unmistakably preexisted his active service and, if it did, whether it was clearly and unmistakably not aggravated by service. Additionally, the July 2019 VA addendum opinion is inadequate to resolve this conflicting evidence. In this regard, the VA examiner's use of the phrase "suggests simultaneous [preexisting] knee and hip injury" renders the opinion speculative. Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009) (medical opinion is speculative when it uses equivocal language such as "could" or "might," without any other rationale or supporting data); Bloom v. West, 12 Vet. App. 185, 187 (1999) (use of term "could," without other rationale or supporting data, is speculative); Gross v. Brown, 9 Vet. App. 109, 114 (1996) (use of the phrase "could not rule out" was too speculative to establish medical linkage). Additionally, the Board finds that the VA examiner's opinion was based on an inaccurate premise, as he indicated that the STRs did not show injury, but also discussed the March 1960 consultation report, which clearly stated that the Veteran's knee pain and buckling did not start until basic training. Based on the foregoing, the Board finds that another VA addendum opinion is needed to address the above issues. The matter is REMANDED for the following action: Forward the claims file to a VA examiner who has not previously examined the Veteran or provided an opinion in the appeal for an addendum medical opinion regarding the nature and etiology of the Veteran's right knee disability. The examiner must review the claims file and note that review in the report. Following a thorough review of the record, to include the herein remand, the examiner is asked to respond to the following: (1) Did a right knee disability clearly and unmistakably exist prior to the Veteran's active service? Please explain why or why not, specifically considering and discussing the March 1960 consultation report notation that the Veteran's knee pain and frequent episodes of buckling began during his basic training. (2) If you determine that a knee disability did clearly and unmistakably exist prior to service, was the disability clearly and unmistakably NOT aggravated by service? Please explain why or why not, specifically considering and discussing the March 1960 consultation report notation that the Veteran's knee pain and frequent episodes of buckling began during his basic training. (3) For any right knee disability, to include degenerative joint disease, that did NOT exist prior to the Veteran's active service, is it at least as likely as not (50 percent probability or greater) that such disability was incurred in, or is otherwise related to his active service, to specifically include the Veteran's reported right knee hyperextension during service? Please explain why or why not. A complete and detailed rationale must be provided for all opinions expressed. Another VA examination of the Veteran should only be conducted if deemed necessary by the examiner providing the requested medical opinions. L. STEPANICK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Byrd, 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.