Citation Nr: 21073147 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 14-31 076A DATE: December 7, 2021 REMANDED 1. Entitlement to service connection for left knee disability, to include as secondary to service-connected right knee disability, is remanded. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1980 to July 1983, with additional National Guard Service. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2011 and October 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The issues on appeal were previously denied by the Board in January 2020. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court) which, in a March 2021 Joint Motion for Partial Remand (JMPR), vacated the portion of the Board's January 2020 decision that denied entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability, and entitlement to a TDIU, and remanded the claims for action consistent with its decision. In March 2021, the Court, upon a JMPR, found that the Board's January 2020 decision was based on an inadequate nexus opinion from an August 2019 VA examiner. The Court noted the examiner's failure to apply the correct evidentiary standard by stating "There is neither a consensus of evidence in medical literature or in the medical community that supports a causal or aggravating relationship between these conditions." See August 2019 Addendum Opinion. A consensus of medical evidence is not required to support a claim for VA benefits. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). Therefore, the Court concluded that the examiner's statement does not adequately explain the opinion that the Veteran's left knee condition was less likely than not related to service, and that the reliance on an inadequate medical opinion to negate a nexus could constitute the Board's failure of its duty to assist. See Jones v. Shinseki, 23 Vet. App. 382, 388-91 (2010). The appeal was returned to the Board for compliance with the March 2021 JMPR. In August 2021, the Board remanded the issue for further development. Specifically, the Board's August 2021 remand instructed the Regional Office to secure an addendum opinion from a qualified examiner regarding the issue of whether the left knee disability was secondary to service-connected right knee disability. Although a September 2021 VA opinion was obtained, the Board finds that there has not been substantial compliance with its August 2021 remand directives, and thus the claim must be remanded. 1. Entitlement to service connection for left knee disability, to include as secondary to service-connected right knee disability is remanded. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. As noted above, in August 2021, the Board remanded the claim to obtain an addendum VA medical opinion to address whether the Veteran's left knee condition is secondary to his service-connected right knee disability. Although a September 2021 VA opinion was obtained, the Board finds that opinion to be inadequate. In this regard, the September 2021 VA examiner declined to provide a positive nexus opinion linking the Veteran's left knee condition to his service-connected right knee disability, reasoning that the condition of one joint does not cause a condition of the contralateral joint. Gait accomodation, the examiner explained, does not cause a condition of the contralateral knee unless under rare exceptions, which are not evident with the Veteran. He went on to opine that the Veteran's service-connected right knee condition did not aggravate the Veteran's left knee condition beyond its natural progression as indicated by the fact that degenerative joint disease (DJD) tends to progress naturally and that "the Veteran's age in 2019 DJD would be considerations." The Board finds the aggravation opinion is not supported by an adequate rationale. First, the opinion lacks clarity and is confusing given the wording. For example, it is not entirely clear what the examiner intended to convey when he noted "the Veteran's age in 2019 DJD would be considerations." Furthermore, the examiner failed to discuss why the year 2019 is relevant to the claim. Lastly, while the examiner noted that DJD tends to progress naturally, he failed to address whether the Veteran's antalgic and limping gait due to his service-connected right knee disability aggravated the condition. See October 1992 VA Treatment Record; see also July 2007 VA Treatment Record. As such an addendum opinion is warranted. On remand, the examiner is specifically requested to provide an adequate opinion with reasoned bases and rationales for every conclusion stated. An opinion on the etiology of the Veteran's left knee condition must include a discussion of all the pertinent evidence of record, including lay evidence. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. The issue of TDIU is inextricably intertwined with the claim for entitlement to service connection for a left knee disability. Two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one cannot be rendered until a decision on the other has been rendered. See Harris v. Derwinski, 1 Vet. App.180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain an addendum opinion by a suitably qualified health care professional to determine the nature and etiology of the Veteran's left knee disability. An examination of the Veteran should only be scheduled if the examiner determines one is necessary to obtain the requested opinion. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. Following a full review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's left knee disability is caused or aggravated by his service-connected right knee disability. When discussing both causation and aggravation, the examiner must specifically review and discuss the October 1992 and July 2007 VA treatment reports noting an antalgia and limping gait. (Continued on the next page) A complete rationale must be provided for all opinions offered. If any opinion cannot be offered without resorting to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence would potentially allow for a more definitive opinion. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell, Tangela 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.