Citation Nr: 21069509 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 14-13 058 DATE: November 18, 2021 REMANDED Service connection for a right knee disability is remanded. A total disability based on individual unemployability (TDIU) prior to January 18, 2017, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1973 to September 1982. This matter is on appeal from November 2010 and April 2014 rating decisions. In January 2017, the Veteran testified regarding it at a video hearing before the undersigned Board of Veterans' Appeals (Board) Veterans Law Judge. The Board denied service connection for a right knee disability and remanded a TDIU for additional development in February 2018. After completion of this development, a May 2019 rating decision granted a TDIU effective January 18, 2017. Prior to this date, a TDIU remained on appeal. Harper v. Wilkie, 30 Vet. App. 356, 361-362 (2018). The United States Court of Appeals for Veterans Claims (Court) further issued an order granting a Joint Motion for Partial Remand vacating the denial of service connection for a right knee disability in June 2019. Both issues comprising this matter accordingly returned to the Board. In January 2020, they were remanded for more additional development. In September 2020, they once again were denied. The Court issued an order granting a Joint Motion for Remand (JMR) vacating these denials in May 2021. This matter accordingly once again has been returned to the Board. Unfortunately, another remand for additional development is warranted before readjudication can occur. Of note is that a separate appeal concerning service connection for a left knee disability, a cervical spine disability, a lumbar spine disability, a right shoulder disability, and a left shoulder disability also currently is under remand for additional development. Right Knee Disability The Board's September 2020 decision included a finding that the Veteran's right knee disability was not permanently aggravated by his service-connected heel disabilities (right foot heel contusion status-post compression injuries, left foot heel contusion status-post compression injuries with non-displaced healed calcaneus fracture). This finding was based largely on an October 2010 VA medical opinion. However, the JMR indicates that the Board erred in relying on it because it took into consideration the wrong legal standard. Specifically, an opinion on whether the Veteran's right knee disability had been permanently aggravated by his service-connected heel disabilities was requested. This is contrary to recent caselaw. Secondary service connection indeed is warranted for any incremental increase of a nonservice-connected disability proximately due to or the result of a service-connected disability, regardless of permanence. Ward v. Wilkie, 31 Vet. App. 233, 239 (2019) (interpreting 38 C.F.R. § 3.310(b)). The Board accordingly was directed to obtain a new VA medical examination or opinion determining whether the Veteran's right knee disability is secondary to his service-connected heel disabilities. Compliance with this directive is mandatory. Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). As the aforementioned opinion has been deemed inadequate, the Board finds that a new opinion is required. Barr v. Nicholson, 21 Vet. App. 303, 311-312 (2007). Whether a new examination is needed as well is left to the discretion of the opining clinician. Attempts must be made beforehand to obtain any outstanding treatment records. TDIU Prior to January 18, 2017 Adjudicating a TDIU requires consideration of the ratings assigned for service-connected disabilities and the impact they have on the ability to work. 38 C.F.R. § 4.16(a, b). As such, the issue of a TDIU is inextricably intertwined with pending service connection and higher rating issues. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). In addition to service connection for a right knee disability encompassed by this matter, it is reiterated that service connection for several other disabilities also is on appeal. Adjudication of a TDIU prior to January 18, 2017, must be deferred until these issues are resolved. This matter is REMANDED for the following action: 1. Follow established procedure for obtaining the Veteran's updated VA treatment records and any outstanding private treatment records identified as relevant to his right knee or ability to work. 2. After completing paragraph 1, arrange for a qualified VA clinician to render an opinion regarding the Veteran's right knee disability. Whether an examination is needed is left to this clinician's discretion. The clinician specifically shall review the claims file and opine, with respect to each right knee disorder present (or which was present during the pendency of this appeal) as to whether it is at least as likely as not that such right knee disability: (a) was caused by the Veteran's service-connected right foot and left foot heel disabilities, or (b) has been aggravated (incrementally increased, regardless of permanence) by his service-connected right foot and left foot heel disabilities? To support each opinion, a detailed explanation is required. This means that relevant medical principles and/or medical literature should be discussed as it relates specifically to the Veteran, as shown by the medical and lay (non-medical) evidence. In this regard, comment must be made about the medical literature cited by his representative in May 2021 and October 2021 Written Brief Presentations about the development and progression of arthritis including in an individual with a limp and how the feet and ankles impact other joints. 3. Then readjudicate service connection for a right knee disability. After resolving all other service connection issues (and higher rating issues, if any) on appeal, also readjudicate a TDIU prior to January 18, 2017. If either issue remains denied, whether wholly or partially, follow established procedure for returning it to the Board. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Becker 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.