Citation Nr: A21017258 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 200515-83791 DATE: October 26, 2021 REMANDED Entitlement to service connection for right knee disability, including arthritis is remanded. Entitlement to service connection for a left knee disability, including arthritis, degenerative joint disease status post arthroscopic surgery, and left knee bipartite patella is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1973 to June 1977 and from February 1982 to February 1998. These matters arise from a January 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision declining to reopen claims for service connection for right and left knee disabilities. In June 2018, VA received the Veteran's request to opt into the Rapid Appeals Modernization Program, the Rapid Appeals Modernization Program, in which he requested a Higher-Level review (HLR) decision. The RO issued a HLR decision in October 2018, which considered the evidence of record as of the date VA received the RAMP election form. The October 2018 HLR decision, in pertinent part, readjudicated the claim, denying service connection for a right and left knee disabilities. In January 2019, the Veteran appealed the RAMP decision to the Board only to the extent that it denied service connection for a right and left knee disabilities. The Veteran elected Direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ), the VA RO in this case. Based on the evidence of record at the time of the RAMP opt-in, the Board granted readjudication of the Veteran's left and right knee disability claims in its February 2020 decision and remanded the claims for further development, including an initial decision by the AOJ. The claims were readjudicated in an April 2020 rating decision, and the Veteran appealed the denial by requesting Direct review of the decision in May 2020. The Board finds that the medical opinions of record continue to be inadequate, despite the February 2020 remand directives. As such, there is a pre-decisional duty to assist error requiring remand for correction. Entitlement to service connection for a right and left knee disabilities The Board finds that the evidence of record does not contain an adequate VA examination and opinion, despite the prior Remand. See Barr v. Nicholson, 21 Vet. App. 303 (holding that if VA provides an examination when developing a service-connection claim, even if not statutorily obligated to do so, the examination must be adequate). See also, Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand gives the Veteran a right to compliance with the terms of the remand). In its February 2020 decision, the Board found the January 2015 VA examination and December 2017 private opinions inadequate with which to decide the Veteran's claims. Similarly, the March 2020 VA examination, obtained in response to the February 2020 Remand, is also inadequate, leaving no adequate examination of record for adjudicating this issue. The March 2020 VA examinations notes bipartite left patella and states it is most likely congenital and present since early childhood. However, it also lumps bilateral arthritis into this same opinion without explaining whether the arthritis condition was superimposed over the bipartite patella. It is unclear to the Board whether the examiner states arthritis is congenital and present since early childhood or if this only refers to the bipartite patella. If it only refers to the bipartite patella, and the examiner acknowledges continued symptoms since the 1990s, the ultimate opinion is contrary to the examiner's rationale (e.g., in-service injury, continuity of symptomatology until x-ray diagnosis in 2015, but a negative nexus opinion). Further, it is unclear to the Board what the examiner means by "no available in-service records show sufficient evidence of knee claims." The Board identifies in-service records noting left knee injury on February 6, 1989, February 14, 1989 left knee follow-up, December 10, 1997 identification of degenerative spurring at the intercondylar eminences of the tibia, as well as possible patellar bone spur noted on December 11, 1997. The March 2020 examination opinion is also inadequate regarding the right knee. The Veteran claimed second and/or third degree burns on his knees. However, the examiner's opinion address only second degree burns which "do not penetrate beyond the dermal layer and would be unlikely to cause or worsen arthritis/meniscal conditions." The opinion does not address third degree burns which by definition are full thickness burns. It only states there are no scars at the time of examination, which without further explanation is meaningless to the Board beyond not providing a separate rating for scarring. The opinion also does not address if the medical evidence of record, including the March 1991 service treatment records of burns to the knees, supports or is inconsistent with the Veteran's claims of second or third degree burns on his knees, e.g., what evidence supports that the Veteran did suffer such burns or what evidence refutes full thickness burns. Also, the examiner also uses the same unclear statement that "no available in-service records show sufficient evidence of knee claims" for the right knee. Based on the above, both the left and right knee opinions are inadequate and require remand to obtain an adequate VA medical opinion for each knee. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's bilateral knee conditions. The claims file must be reviewed for purposes of providing the following opinions: FOR THE LEFT KNEE: (a) The examiner must opine whether the Veteran's left knee disability, to include bipartite left patella, is a congenital defect, (i.e., a structural or inherent abnormality which is more or less static in nature) or a congenital disease (i.e., a condition capable of improving of deteriorating)? (b) If any left knee disability, to include bipartite patella, is a congenital defect, is it at least as likely as not (a 50 percent or greater probability) that the defect was subject to superimposed disease or injury during service resulting in a current disability? (c) If the left knee disability, to include bipartite patella, is a congenital disease, did the condition clearly and unmistakably (undebatable) exist prior to entry into the Veteran's periods of service beginning in June 1973 and/or February 1982? The examiner must identify the specific evidence and reasoning on which this opinion is based on. (d) If yes to (c), did the Veteran's left knee disability, clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression) during or as a result of either period of active-duty service? The examiner must identify the evidence and reasoning on which this opinion is based on. (e) If the left knee disability is determined not to have clearly and unmistakably existed prior ot service or not to have been clearly and unmistakably aggravated by or service or for any other left knee disability, is it at least as likely as not (50 percent or greater probability) that the disability had its onset in, or is otherwise related to, the Veteran's military service, to include kneeling, climbing, performing concrete work, burns to the knees, hyperextension of the left knee and/or degenerative changes to the left knee? FOR THE RIGHT KNEE: (f) Regarding the Veteran's right knee, is it at least as likely as not (a 50 percent or greater probability) that any right knee disability had its onset in, or is otherwise related to the Veteran's military service, to include kneeling, climbing, performing concrete work, or burns to the right knee? (Continued on the next page) FOR ALL KNEE DISABILITIES DIAGNOSED: (e) The examiner must address the Veteran's lay contentions, e.g., second and/or third-degree burns causing or aggravating his knee condition(s) any physical conditions of service. The examiner should also address the Veteran's claimed continuity of symptomatology since service. The examiner is asked to identify specific evidence supporting her/his opinion rationale why the cited evidence supports the opinion or the Veteran's contentions. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boushehri, Darjush M. 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.