Citation Nr: 21068754 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 16-35 238A DATE: November 12, 2021 REMANDED Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a left knee condition is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1988 to September 1991. These matters were last before the Board in May 2021, whereupon they were remanded to the agency of original jurisdiction (AOJ) for further development of the record. Following the issuance of an August 2021 supplemental statement of the case continuing the denial of both claims, the case was returned to the Board for its adjudication. As a reminder, the Veteran testified at a November 2019 hearing before the undersigned Veteran Law Judge. The Board in its May 2021 remand directives instructed the AOJ to secure an opinion for a VA medical professional regarding the likely etiology of the claimed right and left knee conditions. Specifically, the Board requested that the chosen VA examiner address the possibility that the Veteran's right and left knee conditions were secondary to a service-connected disability. In setting forth this opinion, the AOJ was reminded that the chosen examiner was required to opine as to whether the right and left knee conditions were either directly caused by a service-connected disability OR whether they were aggravated by a service-connected disability. Furthermore, with regards to the aggravation prong of the secondary analysis, the Board explicitly noted that the standard was NOT whether the right and/or left knee condition were aggravated beyond the normal progression of the purported disability but instead only if the severity of either condition was increased in any way by a service-connected disability. Moreover, the Board highlighted multiple theories of aggravation set forth by the Veteran, to include the contention that service-connected disabilities resulted in his instability, thus aggravating the right and left knee conditions, as well as the contention that his service-connected disabilities reduced his physical conditioning and therefore increased the severity of his right and left knee conditions. In the resulting opinion dated in August 2021, the chosen VA examiner found that it was less likely than not that the right and/or left knee conditions were secondary to a service-connected disability, and specifically stated that the claimed knee conditions were less likely than not "aggravated beyond [their] natural progression" by one or more service-connected disabilities. See August 2021 Medical Opinion Disability Benefits Questionnaire. In support thereof, the examiner referred to medical literature for the determination that injury in the spine or an extremity would rarely cause disability in another extremity except where that injury resulted in major displacement of the center of gravity and an abnormal gait pattern. The examiner further noted the lack of objective evidence tending to show that the Veteran developed an abnormal gait pattern of major displacement of the center of gravity as due to his service-connected disabilities. The examiner concluded by stating that any evidence of aggravation of the right and left knee conditions by service connected disabilities would be speculative. Unfortunately, the Board cannot rely on the August 2021 opinion because the examiner did not fully fulfill the May 2021 directives as it pertained to the discussion of the Veteran's contentions regarding secondary service connection. Specifically, the Board notes that the examiner did not address the Veteran's assertion that his reduced physical conditioning as the result of his service-connected disabilities aggravated his right and left knee conditions. Moreover, the literature that the examiner cited to appears to only concern the potential nexus between injury to the spine and the development of disability in the extremities, and does not explicitly discuss the potential for the radicular symptomatology also experienced by the Veteran to increase the severity of the claimed right and left knee conditions. In addition, the Board notes that the examiner utilized the wrong standard of evaluation when considering whether the right and left knee conditions were aggravated by a service-connected disability. As a reminder, secondary service connection is permitted based on aggravation, such that compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). To that end, service connection on a secondary basis can be granted for both causation as well as aggravation. Aggravation includes any increase in the severity of the disability, not the more stringent standard of "aggravated beyond its normal progression" utilized by the August 2021 examiner. 38 C.F.R. § 3.310(b). Finally, the Board highlights that the examiner's utilization of speculative language in his conclusion greatly diminishes the probative value of the opinion as it calls into question the accuracy of the examiner's findings. Accordingly, remand is necessary in order to secure an opinion that is responsive to the Board's prior May 2021 remand instructions, which are copied in large part below. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Provide the claims file to the VA examiner who offered the May 2021 addendum opinion, or to another qualified VA medical professional if that individual is not available, for the purpose of eliciting a further addendum opinion as to the likely etiology of the left and right knee conditions. The entire claims file, including this REMAND, must be made available to the chosen examiner, and that individual must indicate review of the claims file prior to setting forth any opinion. The chosen examiner must set forth an opinion as to whether it is it at least as likely as not (a 50 percent probability or higher) that the left and/or right knee condition had its onset during service or is otherwise related to active service. In addition, irrespective of the answer to the above, the examiner is also requested to provide an opinion as to whether it is at least as likely as not that one or both of the knee conditions was caused or aggravated by one or more service-connected disabilities (as listed in an August 2021 rating decision). The examiner must discuss the possibility that either condition on appeal is attributable to each service-connected disability, to include whether the knee condition in question was aggravated by a service-connected disability (defined as any increase in disability). If the opinion is that a service-connected disability or combination of service-connected disabilities aggravated one or both of these conditions, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. If it is not possible to provide an opinion as to the likely etiology of the claimed right and left knee conditions without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). All provided opinions must be supported by complete rationale that considers and discusses both the lay and medical evidence of record. 2. Confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, secure an addendum. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.