Citation Nr: 21009339 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 14-39 185 DATE: February 22, 2021 REMANDED Entitlement to service connection for a right knee disability, to include as secondary to service-connected bilateral pes planus, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1994 to May 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In August 2014 the Veteran filed a notice of disagreement (NOD) and in October 2014 the RO issued a statement of the case. In November 2014 the Veteran perfected his substantive appeal. In a December 2018 decision, the Board remanded this issue for additional development. Unfortunately, as discussed below, the Board’s directives have not been substantially completed, and a remand is required. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for a right knee disability, to include as secondary to service-connected bilateral pes planus, is remanded. The Veteran is seeking service connection for a right knee disability. Specifically, the Veteran contends that his right knee disability started during service. See February 2013 Statement in Support of Claim. Alternatively, the Veteran asserts that his right knee disability is related to his service-connected pes planus. See February 2021 Appellate Br. As noted above, in a December 2018 decision, the Board remanded this issue for additional development. Specifically, the RO was instructed to obtain a VA examination and medical opinion. In November 2019 the Veteran was afforded a VA examination. The examiner opined that the Veteran’s knee disability is less likely than not due to service. He explained that he found no documentation of a knee problem in the Veteran’s service treatment records (STRs) and there is a 15-year gap between the Veteran’s service and his knee pain. Unfortunately, this VA medical opinion is inadequate for adjudicative purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Specifically, the examiner fails to consider the Veteran’s statements that he reported his knee pain in his 1998 VA examination, that the examination was rushed. As such, a remand for a new VA opinion is warranted. In addition, the record reveals that the Veteran has raised a new theory of entitlement in his February 2021 Appellate Br. Accordingly, a remand for a new VA opinion is also warranted for a clinician to address this new theory of entitlement. The matters are REMANDED for the following action: 1. Obtain all relevant outstanding VA treatment records, and any private treatment records identified by the Veteran. All records and/or responses received should be associated with the claims file. 2. After all outstanding treatment records have been associated with the claims file, obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran’s right knee disability. If an opinion cannot be obtained without an examination, then a VA examination should be afforded to the Veteran. The VA examiner should address the following: (a.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s right knee disability had its onset during service or is otherwise causally related to any event or circumstance of the Veteran’s service? (b.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s right knee disability was (1) caused by his service-connected bilateral pes planus and/or (2) aggravated by his service-connected bilateral pes planus? In doing so, the examiner should address the medical literature referenced by the Veteran in his February 2021 Appellate Br. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. For the purposes of secondary service connection, the examiner is advised that aggravation is defined as “any increase in disability.” See Allen v. Brown, 7 Vet. App. 439, 448 (1995). If it is determined that the Veteran’s right knee disability was aggravated by his service-connected bilateral pes planus, please discuss whether the baseline level of severity is established by medical evidence 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 his service-connected disabilities. The examiner should cite to the pertinent medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated, and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 3. After undertaking any additional development deemed necessary, the AOJ must readjudicate the claim on appeal. If any claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kaufer, 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.