Citation Nr: 21071206 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 12-33 928 DATE: November 30, 2021 REMANDED Entitlement to service connection for a right knee meniscus tear, to include as secondary to right knee anterior cruciate ligament (ACL) repair residuals, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1994 to March 2000. In March 2013 the Veteran testified before a Veterans Law Judge (VLJ) at a Board hearing. In October 2021, the Board notified the Veteran that the VLJ who conducted the March 2013 hearing had retired and offered the Veteran a new hearing. As the Veteran did not respond, the Board will adjudicate based on the evidence of record. In a December 2017 decision, the Board denied the Veteran's appeal for service connection for a right knee meniscus tear. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2018, the parties, the Secretary of VA and the Veteran, filed a joint motion for remand (JMR) to vacate the Board's December 2017 decision. In a July 2018 Order, the Court granted the motion. Based on the July 2018 JMR, the Board remanded the issue in a March 2019 decision for further development. In a February 2020 decision, the Board again denied the Veteran's claim for service connection for a right knee meniscus tear. The Veteran again appealed to the Court and in October 2020, the parties filed a Joint Motion for Partial Remand (JMPR) to vacate the Board's February 2020 decision as it pertained to service connection for a right knee meniscus tear. In March 2021, the Board remanded the issue on appeal for further development. Specifically, the Board instructed that an addendum opinion which properly considered the Veteran's medical history as well as adequately addressed prior statements regarding meniscus degeneration was to be obtained. In August 2021 an addendum opinion was obtained. Unfortunately, the Board finds that for the reasons outlined below an additional remand is necessary as its prior instructions were not substantially complied with. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Entitlement to service connection for a right knee meniscus tear, to include as secondary to right knee ACL repair residuals, is remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.§ 5103A; 38 C.F.R.§ 3.159. In addition, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall, 11Vet. App.at 268. As previously noted, the Board remanded the claim on appeal in March 2021 so that an addendum opinion could be obtained. Specifically, the Board noted that the new opinion must address whether or not there is clear evidence that the Veteran has a right knee meniscal tear. In addition, the examiner was asked to thoroughly discuss secondary service connection, both the causal and aggravation prongs. In addition, the Board required a complete rationale for any opinions expressed. In August 2021 the Veteran underwent a VA Knee and Lower Leg Conditions examination with an accompanying disability benefits questionnaire (DBQ). The examiner noted that the Veteran had a right knee meniscal tear with residuals. The examiner noted that the Veteran's original service-connected condition of right knee anterior cruciate ligament repair with residuals had additional conditions which were directly related to it. The examiner noted a 2011 right knee x-ray and MRI which indicated right knee degenerative arthritis due to the 1999 knee injury and surgery and limping with weight bearing causing degenerative arthritis. The examiner further noted intrasubstance degeneration in the posterior horn of the medial meniscus and wearing out of the medial knee cushion. The examiner also provided an additional VA Medical Opinion. However, the examiner found that there was no clear evidence of a meniscal tear and that if a meniscal tear had been found such would not be due to his ACL issue as such was in 1999 and the meniscal problem was in 2008. In addition, the examiner found that the Veteran's claimed meniscal tear was less likely than not incurred in or caused by his active duty and that it was less likely than not proximately due to or the result of his service-connected condition. Finally, while the examiner found that the Veteran's service-connected condition had worsened, he found that such was aggravated by the Veteran's antalgic gait. While the Board appreciates the examiner's attempt at thoroughly discussing the Veteran's case, unfortunately, the Knee and Lower Leg examination and the Medical Opinion appear to be inconsistent and conflicting. A crucial aspect of the Veteran's claim is that he suffers from a right knee meniscal tear, and the Board specifically requested clarification of the issue. Unfortunately, the August 2021 examination and opinions only further confuse the issue. Therefore, on remand clarification must be obtained. In addition, clear and concise but thorough handling of the Veteran's claims for direct and secondary service connection, to include both the causal and aggravation prongs, must be obtained. Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain updated treatment records. 2. Obtain an addendum opinion from an examiner of appropriate expertise to determine the nature and etiology of any right knee meniscus tear and/or residuals thereof at any time during the period on appeal. (If it is determined that an additional examination is needed to address this matter, such examination should be scheduled in accordance with applicable procedures.) The examiner must be given access to all records contained in the electronic file, and a notation must be made that review of all records has been accomplished. After a thorough review of the medical history, the examiner is requested to prepare a detailed opinion which answers the following: Please identify whether or not there is clear evidence of a right knee meniscal tear. Please address and reconcile any previous examination reports, to include the June 2015 examination report noting meniscus degenerative, as well as the August 2021 Knee and Lower Leg examination and Medical Opinion, as well as any other pertinent evidence of record. (a) Is it at least as likely as not (that is, a probability of 50 percent or greater) that the Veteran's claimed right knee meniscus tear had its origin in service or is otherwise related to the Veteran's active service? (b) Is it at least as likely as not (50 percent or greater probability), that the Veteran's claimed right knee meniscus tear was caused by his service-connected disabilities, including his right knee ACL repair residuals? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's claimed right knee meniscus tear was aggravated (permanently worsened beyond the natural progress of the disorder) by his service-connected disabilities, including his right knee ACL repair residuals? If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should provide a COMPLETE RATIONALE FOR ANY OPINIONS EXPRESSED, based on the examiner's clinical experience, medical expertise, and established medical principles. If medical literature is utilized to formulate any opinion, the examiner must provide adequate citation and discussion of such literature or research. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Unger, 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.