Citation Nr: 21070187 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-04 996A DATE: November 23, 2021 REMANDED Entitlement to compensation under U.S.C. § 1151(a)(2)(B) for a left knee injury, due to compensated work therapy (CWT) program, is remanded. REASONS FOR REMAND The Veteran had active service with the United States Army from February 1978 to August 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Board remanded the claim for additional development including a new VA examination. The Veteran was afforded a new VA examination in September 2021. After a Supplemental Statement of the Case (SSOC), the claim is back before the Board. Although further delay is regrettable, a remand is necessary for an adequate VA opinion. The Veteran contends that he suffered a left knee disability after tripping over some boxes while participating in a VA CWT (Compensated Work-Therapy) program. The January 2020 Remand noted that the Veteran's treatment records from July 2012 documented that the Veteran received treatment after falling over some boxes and hurting his knee while participating in a CWT program. See Remand BVA received January 2020, CAPRI received June 2020. Under 38 U.S.C. § 1151(a)(2)(B), compensation may be paid for a qualifying additional disability if, in pertinent part, such disability was proximately caused by participation in a CWT program. 38 U.S.C. § 1151(a)(2)(B). The proximate cause of a disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. See 38 C.F.R. § 3.361(d). The Board finds that the September 2021 VA opinion was inadequate on its face for VA purposes. In September 2021, the Veteran had a VA examination for his left knee. The opinion requested from the examiner was whether it was as likely as not that the claimed disability of the left knee status post injury was caused by or became worse as a result of the VA treatment at issue. Moreover, the examiner was asked whether the additional disability resulted from carelessness, negligence, lack of skill, or similar fault. Unfortunately, this was the wrong inquiry for a claim of entitlement for compensation under U.S.C. § 1151(a)(2)(B) for an injury potentially sustained during participation in a CWT program. With emphasis, the requirement of carelessness, negligence, etc., on part of VA does not apply to a claim based on participation in a CWT program. See 38 C.F.R. § 3.361(c), (d)(3). Upon remand an addendum opinion is to be provided which addresses whether the Veteran currently has a left knee disability, that was proximately caused by participation in a CWT program. 38 U.S.C. § 1151(a)(2)(B). The matters are REMANDED for the following action: 1. Update any relevant VA medical treatment records. 2. After completing the above, obtain an addendum opinion from a clinician, with the appropriate training and expertise, to offer an opinion as to the etiology of the Veteran's left knee disability. The electronic claims file must be made available to the VA medical expert for review. The VA medical expert should make clear in their opinion that records were reviewed. A copy of this REMAND must also be provided to the VA medical expert. The VA medical expert must respond to the following question: (a.) Opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability), that the Veteran's current left knee disability was proximately caused by his participation in the VA CWT program. Please note and discuss: that the Veteran had some treatment for knee pain prior to his fall in July 2012, that the Veteran sought treatment for a fall in July 2012 for falling over a box while participating in a CWT program, that VA treatment records from August 2012 stated that the Veteran probably had a left medial meniscal tear, and that a left knee MRI was performed in February 2013 showing some abnormalities, including an abnormal medial meniscus. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. 3. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is returned to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.