Citation Nr: 21006252 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 11-15 127 DATE: February 3, 2021 REMANDED Entitlement to service connection for a left knee disorder, to include as secondary to the service-connected lumbar degenerative disc disease (DDD), right hip trochanteric pain syndrome, and right knee chondromalacia patella disabilities, is REMANDED. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August to December 1986. The Veteran also had honorable active duty service in the United States Air Force from August 1990 to July 1991. Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran’s service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate assistance in developing his claim prior to final adjudication. Entitlement to service connection for a left knee disorder, to include as secondary to the service-connected lumbar degenerative disc disease (DDD), right hip trochanteric pain syndrome, and right knee chondromalacia patella disabilities, is remanded. In October 2008, the Veteran submitted a VA 21-526. Therein, the Veteran initiated a claim for service connection for a left knee disability. In May 2012, the Veteran submitted a typed statement with a VA Form 9. Therein, the Veteran posited that, “years of favoring weight on my left leg is now causing left leg pain also.” In July 2018, the Board considered the Veteran’s claim for service connection for a left knee disorder. At that time, the Board found that, “the weight of the evidence does not establish that the Veteran has a current left knee disorder.” In August 2019, the Court of Appeals for Veterans’ Claims issued a Joint Motion for Partial Remand (JMPR). Therein, the Court indicated that, “the Board’s statement of reasons or bases for its denial of Appellant’s claim for entitlement to service connection for a left knee disorder was also deficient because, although it found that Appellant did not have a diagnosed left knee disability. . . it failed to consider the Federal Circuit’s holding in Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018) (holding that objective evidence of pain alone may constitute a disability where such ‘pain reaches the level of a functional impairment of earning capacity’). The parties agree that the possibility of service connection for left knee pain is raised by the record, despite there being no diagnosed left knee disability, insofar as the evidence indicates that Appellant has complained of left knee pain that affects physical activity and walking, and is increased due to exercise, movement, standing, and walking.” In February 2020, the Board addressed the Veteran’s claim for service connection for a left knee disability. The Board remanded the claim to agency of original jurisdiction (AOJ) to obtain a VA examination report that addressed the nature and etiology of any current left knee pain that impedes the Veteran’s function. Among other directives, the Board directed the VA examiner to address whether the Veteran had any current functional limitation of the left knee, to include functional limitation due to pain. In September 2020, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured knee and lower leg conditions. The VA examiner noted diagnoses for bilateral knee strain and right knee chondromalacia patellae. The Veteran reported that she injured her right knee and back when she fell off a pallet during service in 1991. The Veteran reported that, over time, favoring her right side put additional load / pressure on the left knee. The Veteran reported that she currently endures bilateral knee pain. The Veteran identified dull and aching left knee pain at 6/10. The Veteran reported that she endured left knee flare-ups when she had to stand for 4 – 5 hours. The VA examiner noted the following abnormal initial left knee range of motion (in degrees): 130 extension and 0 flexion. The VA examiner reported that the abnormal initial range of motion did not contribute to functional loss. The VA examiner noted that the Veteran demonstrated objective pain with left knee extension and flexion. The VA examination was not conducted during a left knee flare-up. The VA examiner reported that the Veteran did not identify any functional loss or functional impairment of the left knee. The VA examiner reported that pain did not significantly limit functional ability during flare-ups. The Board notes that the VA examiner did not address whether functional loss accompanied the Veteran’s reported flare-ups during prolonged standing. The Board also notes that, for functional impact, the VA examiner reported that, “VT reports very difficult and limitations to walk on stairs, unable to stand for long period of time, VT has to stop 3 - 4 times during the day. Unable to put any pressure to her both knees and VT reports she moves slowly due to her bilateral knee strain and right knee chondromalacia patella.” The VA examiner opined that, “Veteran does not have any current functional limitation of the left knee due to pain on day of exam. A diagnosis of left knee strain is given from objective evidence of limited range of motion and subjective reports from VT on day of exam.” The VA examiner also opined that, “(t)he two conditions, right knee chondromalacia patellae and left knee strain are not medically related. The claimed disorder of left knee disorder is a separate entity entirely from the service connected condition of right knee chondromalacia patellae and unrelated to it. The medical literature does not support a medical relationship.” The VA examiner relayed that, “(u)nable to confirm a chronic diagnosis with current available records. A diagnosis of left knee strain is given on day of exam given objective exam and subjective reports from VT on day of exam. Therefore no nexus or plausible secondary relationship is established.” In September 2020, a Medical Opinion Disability Benefits Questionnaire was associated with the claims file. After review of the claims file, the VA examiner opined that the Veteran’s left knee disorder was less likely than not (less than 50 percent probability) proximately due to, or the result of, the Veteran’s service-connected right hip and lumbar spine disabilities. The VA examiner relayed that, “in essence there is very little current pathology with regard to the left knee at all. Therefore, given the dearth of positive clinical findings for the left knee, it would appear that the current diagnosis is mild chronic left knee (patellofemoral pain syndrome). It would be highly unlikely clinically for the current left knee issues to be causally related to mild LS spine DDD/DJD or to chronic contralateral hip trochanteric pain.” syndrome/bursitis. Basically the Veteran has left knee PFPS due to normal aging in a 52 year old individual.” The Board finds the September 2020 opinions inadequate, because the VA examiners did not properly consider the competent and credible lay statements from the Veteran when formulating the opinions. See e.g., Dalton v. Nicholson, 21 Vet. App. 23 (2007). Specifically, the first VA examiner relayed that the Veteran did not identify any functional loss or functional impairment of the left knee. However, the same VA examiner reported that the Veteran indicated that she moves slowly because of her bilateral knee strains. The second VA examiner reported that there was “very little” left knee pathology, and it would be “highly unlikely” for the current left knee issues to be causally related to the service-connected lumbar spine or right hip disabilities. The Board finds that a remand is warranted to obtain a VA examination report that considers the competent and credible lay statements from the Veteran regarding the nature and etiology of the current left knee disorder(s). Consequently, the matter is REMANDED to the AOJ for the following action: 1. If available, the September 2020 VA examiners must supply addendum opinions. If unavailable, schedule the Veteran for the requisite examination(s). All necessary diagnostic testing and evaluations should be performed, and all findings set forth in detail. Based upon a review of the entirety of the claims file, the history presented by the Veteran, and the examination results, the examiners are requested to provide opinions as to the following questions: (i) Does the Veteran have any current functional limitation of the left knee to include functional limitation due to pain? (ii) For any functional impairment of the left knee identified, is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran’s left knee pain and/or functional impairment was caused by or had their clinical onset during the Veteran’s active duty service? (iii) Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran’s left knee pain and/or functional impairment was caused or aggravated by any of the Veteran’s service-connected disabilities? Governing regulations provide that service connection is permissible on a secondary basis if a claimed disability is proximately due to, or aggravated by, a service-connected disability. See 38 C.F.R. § 3.310. The term aggravation is defined as a chronic and permanent worsening of the underlying condition beyond its natural progression versus just a temporary or intermittent flare-up of symptoms. If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran had, above and beyond that she had prior to the aggravation. It should be noted that the Veteran is considered competent to attest to matters of which she has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the lay history provided by the Veteran, the examiner should provide a fully reasoned explanation. Explanations for all opinions must be provided. In providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records and the Veteran’s statements regarding the degree of and/or onset of left knee symptoms. 2. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claim on appeal. If the benefit sought is not granted, issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and her representative an opportunity to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board RLBJ, 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.