Citation Nr: 21008714 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-29 196 DATE: February 17, 2021 REMANDED Service connection for a right knee condition, to include as secondary to a service-connected left knee condition, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from February 1970 to August 1971. The matter is on appeal from an October 2012 rating decision. In a February 2019 Board decision, the Board found that new and material evidence sufficient to reopen a claim for service connection for a right knee condition had been presented. However, the Board denied the Veteran’s claim for service connection for a right knee condition, to include as secondary to a service-connected left knee condition. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court issued a Memorandum decision, in which the Court noted that the Board’s determination that new and material evidence had been presented to reopen the Veteran’s claim was a favorable finding that the Court may not disturb. However, the Court vacated the Board’s decision denying service connection for a right knee condition and remanded the matter for further proceedings. In the June 2020 Memorandum decision, the Court noted that the Board had relied primarily on the Veteran’s September 2012 VA examination and addendum opinion to find that the Veteran’s right knee condition was not aggravated by his service-connected left knee condition. However, the Court found that it could not address whether the Board erred in its reliance on that examination, as the Board had not made any factual findings regarding the adequacy of the examination. In addition, the Court noted that in the Board’s findings of fact, the Board found that the Veteran’s currently diagnosed right knee condition was not caused or aggravated by his service-connected left knee disability. However, it was noted that the Board did not provide an analysis as to whether the Veteran’s right knee condition was caused by his service-connected disability. While the Court did not address the Veteran’s argument that the examiner and the Board applied the incorrect standard under § 3.310(b) in light of the Court’s decision in Ward v. Wilkie; the Court noted that since the Veteran had raised the argument, that it was to be considered. Ward v. Wilkie, 31 Vet. App. 223 (2019). In the Appellate brief submitted by the Veteran’s representative in December 2020, it was argued that the September 2012 examination is inadequate because there was only an opinion pertaining to aggravation, and there was not an opinion pertaining to causation. The Veteran’s representative noted that the September 2012 VA examiner reported the Veteran to be an avid runner and to have regularly walked over the prior two years. However, the representative argued that the examiner did not explain why this information was relevant, and therefore contended that the examination is inadequate. In addition, a medical treatise that suggests that running neither worsens, nor causes, arthritis was submitted by the Veteran’s representative. At the Veteran’s September 2012 VA examination, the VA examiner reported that the Veteran had a successful surgery for ACL reconstruction of the left knee in approximately 1971. The Veteran was noted to have been an avid runner, and a June 2005 rheumatology treatment note indicated that the Veteran ran 20 to 30 miles weekly. Additionally, it was reported that over the previous two years the Veteran had walked regularly. The examiner reported that the Veteran’s C-file was not currently available, and that therefore he was unable to render an opinion at the time. In a September 2012 addendum opinion, the examiner found that the Veteran’s right knee osteoarthritis was not aggravated beyond its natural progression by his left knee ACL repair. For a rationale, the examiner referenced the September 2012 VA examination. As the September 2012 VA examiner did not render an opinion pertaining to causation, the Board finds that a remand is warranted to obtain a VA medical opinion to determine whether the Veteran’s right knee condition was caused by his service-connected left knee condition. Additionally, as the Veteran’s representative argues that the VA examiner did not explain the significance of the Veteran’s avid running and regular walking, and submitted a medical treatise that suggested running does not worsen or cause arthritis, a remand is warranted to obtain a VA medical opinion that takes into account the literature, as well as for purposes of clarity. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his right knee condition. The examiner should answer the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s right knee condition was caused by his service-connected left knee condition? Why or why not? In providing an opinion, the examiner should take into account and discuss the December 2020 Appellate brief as well as the medical treatise submitted in December 2020. (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s right knee condition was aggravated (made worse) by his service-connected left knee condition? Why or why not? For questions of aggravation, the examiner is to consider whether there was worsening, even if only temporary, over the course of the claim. In Ward, the Court clarified that secondary service connection does not require permanent worsening to qualify for service connection based upon aggravation by a service-connected disability. See Ward, 31 Vet. App. 233 (2019). In providing an opinion, the examiner should take into account and discuss the December 2020 Appellate brief as well as the medical treatise submitted in December 2020. If aggravation is found, the examiner should identify the baseline level of severity of the Veteran’s right knee condition created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the Veteran’s right knee condition. If such cannot be done, then it should be explained why. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lutgens-Staley, Associate 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.