Citation Nr: 21013026 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 17-18 347 DATE: March 8, 2021 REMANDED Entitlement to service connection for a left knee disorder, to include as secondary to service-connected left ankle disability is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from March 1991 to July 1997. This issue comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The Veteran contends that his left knee disorder was the result of military service. Additionally, he contends that his left knee disorder was caused or aggravated by his service-connected left ankle disability. The Board notes that the Veteran is service-connected for lateral ligament instability, left ankle and left lower extremity neuropathy. A review of the service treatment records (STRs) reveals complaints and treatment for left knee issues. Of note, the Veteran complained of ongoing chronic left knee pain throughout active duty service. He was also noted to have a “history of L[eft knee] grade III sprain with mild laxity (Ant[terior] and inversion)” on his exit examination. A review of the post-service VA and private treatment records note continued complaints and treatment for left knee issues. The Veteran submitted an October 2020 private medical report, in which the treating physician (an orthopedic surgeon) found that “it is in my professional opinion that his knee trauma is highly likely due to the previous injury to the left ankle.” The Board notes the probative value of this opinion is significantly lessened as the physician failed to provide a rationale for his opinion. The Veteran testified at his Board hearing that he began experiencing left knee problems as a result of parachute jumps, which caused his left knee to become sore. The Board notes that the Veteran’s reports of parachute jumps is consistent with his DD 214, in which he was awarded a parachutist badge during active duty service. In addition, he testified that he has experienced continuous knee pain since service that has increased “due to my left knee compensation for my injury in my left ankle.” Furthermore, the Veteran denied any prior or subsequent injuries to his left knee and that his left knee had gotten progressively worse since his left ankle surgery approximately four years ago. The Board found the Veteran’s reports of continuous symptomology to be credible. This matter was remanded by the Board in April 2020 for a new VA examination that addressed the Veteran’s credible reports of functional loss or functional impairment of the left knee. A new VA examination was completed in August 2020. The Veteran was diagnosed with a left knee strain. The examiner noted the Veteran’s reports of in-service knee pain due to overuse and constant knee pain since service. The examiner then gave a negative opinion that the left knee disorder was due to military service. The examiner noted that the Veteran was experiencing a left knee strain, which was acute and current. In addition, the examiner noted that a review of the STRs revealed that the Veteran was treated for overused left knee pain, which resolved. The examiner further noted that “there was no documented evidence of serious injury or chronic condition of low back during service or immediately after service.” Finally, the examiner noted that the exit examination was silent regarding any left knee issue and that a 2006 VA examination revealed a normal left knee. A VA medical opinion was issued in October 2020. The examiner (who also conducted the August 2020 VA examination) gave a negative opinion that the left knee disorder was caused by the service-connected left ankle disability. The examiner noted that the Veteran’s left knee strain was acute and current and that there is no evidence that the left ankle condition is responsible for the current left knee strain. The examiner then gave a negative opinion that the left knee disorder was aggravated by the service-connected left ankle disability. The examiner noted that the Veteran’s left knee strain was acute and current and that there is no evidence that the left knee condition was aggravated beyond the natural process of the disease. No other opinions or rationale were provided. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The VA also has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159 (c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the reports of the August 2020 and October 2020 VA examinations and medical opinions are inadequate for adjudicative purposes. The examiner’s opinion was based on an inaccurate factual background, as the evidence of record shows that the Veteran’s left knee issues did not resolve in service and that his exit examination noted a left knee grade III sprain. An opinion based on an inaccurate factual background is entitled to no probative value. In addition, the August 2020 VA medical opinion is factually inconsistent, as the examiner noted no evidence of a chronic condition to the low back, which the Veteran has not alleged. In addition, the examiner failed to consider the Veteran’s credible reports of symptomology when the opinions were rendered, including his testimony that his left knee injury had worsened due to compensating for his service-connected left ankle disability. Based on the inadequacies of the VA examination and medical opinion, the Board finds that there has not been substantial compliance with its previous remand directives. As such, the Board must remand this matter for the issuance of an addendum VA medical opinion that addresses all the evidence of record, including the Veteran’s credible statements. The matter is REMANDED for the following action: 1. Obtain an addendum medical opinion regarding the Veteran’s left knee disorder from a medical professional with appropriate expertise. The examiner should review the Veteran’s claims file and make a notation in the examination report that the claims file was reviewed. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one (or a telehealth interview if an in-person examination is not feasible). Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s left knee disorder has its onset in service or is otherwise related to service? (b.) If the answer to (a) is negative, whether it is at least as likely as not that the Veteran’s left knee disorder was caused by the Veteran’s service-connected disabilities, including but not limited to: his left ankle disability? (c.) If the answer to (b) is negative, then whether it is at least as likely as not that the Veteran’s left knee disorder was aggravated beyond its normal progression by the Veteran’s service-connected disabilities, including but not limited to: his left ankle disability? The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. “Aggravation” means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. The examiner must address the Veteran’s credible reports of functional loss or functional impairment of the left knee during and after active duty. The examiner must address and reconcile, to the extent possible, the medical opinion with the August 2020 and October 2020 VA examination reports and the October 2020 private medical opinion. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.T. Massey, 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.