Citation Nr: 21010174 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-01 398 DATE: February 24, 2021 REMANDED Entitlement to service connection for right hip disability, to include as secondary to service-connected left knee torn meniscus status post meniscectomy with asymptomatic scar (hereinafter “left knee disability”), is remanded. Entitlement to service connection for left hip disability, to include secondary to service-connected left knee disability, is remanded. Entitlement to service connection for right knee disability, to include as secondary to service-connected left knee disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1971 to April 1972 and from March 2003 to June 2004. These matters come on appeal before the Board of Veterans’ Appeals (Board) from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018 and August 2020, the Board remanded the claims for further development. Additional evidence was submitted by the Veteran in November 2020, subsequent to the most recent October 2020 supplemental statement of the case (SSOC) issued for the appeal herein. The Veteran did not waive Agency of Original Jurisdiction (AOJ) review of this additional evidence. However, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the appellant explicitly requests AOJ consideration. Here, the Veteran’s substantive appeal for this appeal was filed after February 2, 2013, specifically in December 2014, and the Board interprets such exception as applying only to evidence submitted by the Veteran. As described above, the record reflects the entirety of the additional evidence was submitted by the Veteran. However, as the Board is remanding the claims for further development, as described below, the AOJ will have the opportunity to review this evidence in the first instance. 1. Entitlement to service connection for a right hip disability is remanded. 2. Entitlement to service connection for a left hip disability is remanded. The Veteran contends that his bilateral hip disabilities were caused by or aggravated by his service-connected left knee disability because of his altered gait. The Veteran is service-connected for a left knee disability, effective May 20, 2011. Private treatment records dated August 2011 indicate that the Veteran’s private orthopedic surgeon found the Veteran had left knee pain and effusion, left knee chondromalacia and arthritis, left leg pain and antalgic gait, and bilateral hip pain with trochanteric bursitis secondary to the Veteran’s antalgic gait. The orthopedic surgeon reported the Veteran’s bilateral hip disabilities were secondary to his antalgic gait; however, the surgeon did not specify whether the antalgic gait was related to the left knee and provided no support for his conclusion. The Veteran underwent VA hip examinations in July 2013 and November 2019. The Board previously found these examinations inadequate, as neither the July 2013 nor the November 2019 provided a medical opinion or rationale for aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Furthermore, the November 2019 VA examination report and conclusions were found to be internally inconsistent. Although the examiner found no hip pathology based on there being no arthritis on November 2019 x-ray studies, the examiner ignored the findings in the examination that show abnormal range of motion and pain on examination. In addition, the November 2019 examiner indicated there were no diagnosed disabilities in the private orthopedic treatment records and ignored the diagnoses already of record in the August 2011 private orthopedic surgeon treatment records and the July 2013 VA examination. Pursuant to the Board’s August 2020 remand, an addendum VA medical opinion was obtained in September 2020. The examiner concluded it was less likely than not that the left knee disability, to include antalgic gait, caused or aggravated the bilateral hip disabilities. The examiner provided the following rationale: The records reflect no specific mal-alignment of the hip joint caused by a limp or knee condition. Without very specific mechanical abnormalities in the joint space and alignment itself, [it] is more likely that the Veteran has either referred pain or has developed a hip condition due to other causes, such as advancing age and body habitus (marked obesity). This is noted by both orthopedics and in prior C&P evaluations. As the September 2020 examiner did not consider the Veteran’s lay statements, as requested in the August 2020 remand, and she did not properly address aggravation of the hip disabilities by the Veteran’s service-connected left knee disability, the September 2020 addendum opinion is inadequate with respect to the Veteran’s current bilateral hip disabilities. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). While the Board regrets further delay, remand is required for an addendum medical opinion for full compliance with the Board’s previous remand instructions. Stegall v. West, 11 Vet. App. 268, 270-71 (1998).   3. Entitlement to service connection for a right knee disability is remanded. The Veteran contends that his right knee disability was caused by or aggravated by the service-connected left knee disability because of his altered gait. Private treatment records dated January 2015 indicate that the Veteran’s private orthopedic surgeon had not seen the Veteran since a postoperative visit in May 2013 for a right knee arthroscopy. The Veteran reported right knee pain and issues with the left knee as a result of an injury. The orthopedic surgeon noted the Veteran underwent surgery on the left knee in 1997. After examination, the surgeon diagnosed the Veteran with right knee pain, status post arthroscopy. The surgeon explained the following: The patient has mild post-arthroscopic arthritis in the right knee. I went back and looked at his pictures and he had a very large medial meniscus tear. The changes that we are seeing clinically are fairly typical for a man in his age group and his size. He clinically has some significant arthritis in the left knee. We gave him literature on a knee replacement today, as well as viscosupplementation. He is not ready to commit to any type of injections. As to any type of compensatory pain in the right knee due to the left knee, he has significant arthritis in the left knee and certainly he might lean away from it but he has developed mild arthritis in the right knee which I would attribute to his having a large meniscus tear and arthroscopy and surgery on the right knee, I have told him it is difficult to draw any corollaries given the fact that there is a 16 year difference between the left and right knee surgeries. The Veteran underwent a VA knee examination in November 2019. The examiner concluded it was less likely than not that the right knee disability was aggravated by the service-connected left knee disability. The examiner rationalized that a private “orthopedic note does not support right knee pathology secondary to left although vet has clearly asked for clarification in 2015.” The Board previously found the November 2019 medical opinion inadequate, as it did not address causation and did not provide a rationale to support the opinion provided. Pursuant to the Board’s August 2020 remand, an addendum VA medical opinion was provided to determine the etiology of the right knee disability in September 2020. The examiner concluded it was less likely than not that the left knee disability, to include antalgic gait, caused the right knee disability. The examiner provided the following rationale: A meniscal tear and traumatic arthritis of the left knee would not cause a meniscal tear and subsequent traumatic arthritis of the right knee. The mechanics of a meniscal tear are a twisting injury under pressure (with heavy weight, even a minor twist can cause a meniscal tear); this occurred well after service and is much more likely related to his weight than anything with the left knee. The orthopedic physician clearly states in his notes that the right knee condition is due to the large meniscus tear in the right knee and not to the left. The examiner also concluded it was less likely than not that the left knee disability, to include antalgic gait, aggravated the right knee disability. The examiner provided the following rationale: A meniscal tear and traumatic arthritis of the left knee would not cause a meniscal tear and subsequent traumatic arthritis of the right knee. The mechanics of a meniscal tear are a twisting injury under pressure-this occurred well after service and is much more likely related to his weight and the event (not clarified in the records available) that caused the right knee meniscal tear. The right knee condition would be far more likely aggravated by advancing age and marked obesity than by a prior history of the left knee condition. As the September 2020 examiner did not consider the Veteran’s lay statements, as requested in the August 2020 remand, and she did not properly address aggravation of the right knee disabilities by the Veteran’s service-connected left knee disability, the September 2020 addendum opinion is inadequate with respect to the Veteran’s current bilateral hip disabilities. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). The examiner did not provide any rationale in determining that the Veteran’s right knee disability was more likely related to his weight. The Board also notes the examiner attributed the Veteran’s weight and an unnamed event as aggravating factors of the Veteran’s right knee meniscal tear without sufficient rationale. While the Board regrets further delay, remand is required for an addendum medical opinion for full compliance with the Board’s previous remand instructions. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). The matters are REMANDED for the following actions: 1. Obtain an addendum VA medical opinion as to the etiology of the bilateral hip and right knee disabilities. The claims file and a copy of this remand must be provided to the Veteran, and the examiner must indicate that he/she reviewed the record on the report. If examination of the Veteran is necessary, such should be arranged. 2. For each disability (right hip, left hip, and right knee), the examiner must address the following: (a) Is it at least as likely as not (50 percent or greater probability) that service-connected left knee disability, to include as antalgic gait from the left knee disability, caused the disability? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected left knee disability, to include as antalgic gait from the left knee disability, aggravated (worsened) the left knee disability? In providing the requested opinions, the examiner must address causation and aggravation. Aggravation does not require that there be “permanent” worsening of the nonservice connected disability. Each opinion must be supported with rationale and should consider the Veteran’s lay statements. If any opinion cannot be provided, the examiner must explain why this is so. Stephanie M. Owen Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.L.N., 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.