Citation Nr: 21014265 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-14 179 DATE: March 11, 2021 REMANDED Entitlement to service connection for left knee disability, to include as secondary to lumbar spine and radiculopathy disabilities, is remanded. Entitlement to service connection for right knee disability, to include as secondary to lumbar spine and radiculopathy disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1978 through May 1979 and January 1982 through August 1897. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Board remanded these matters to the Agency of Original Jurisdiction (AOJ) for additional development. The appeal has since returned to the Board. 1. Entitlement to service connection for left knee disability, to include as secondary to lumbar spine and radiculopathy disabilities, is remanded. 2. Entitlement to service connection for right knee disability, to include as secondary to lumbar spine and radiculopathy disabilities, is remanded. In November 2019 Board remand, the Board requested that the RO obtain an adequate medical opinion addressing the theory of aggravation for secondary service connection regarding the Veteran’s bilateral knee disability. Specifically, the Board requested that a VA examiner opine regarding whether it is at least as likely or not that the Veteran’s bilateral knee disability is aggravated by his lumbar spine disability. In November 2019, a VA examiner opined that the Veteran’s bilateral knee disability was less likely than not cause by an in-service injury, event, or illness. No further opinion was offered that addressed the theory of secondary service connection. The Board finds the November 2019 VA examiner’s opinion inadequate for adjudication purposes. In that regard, the November 2019 VA examiner’s opinion is non-responsive to entitlement to secondary service connection on the basis of aggravation. The VA examiner merely addressed the issue of direct service connection, which was not an issue raised in the November 2019 Board remand. Resultantly, the RO failed to comply with the Board’s remand in obtaining an adequate VA examination. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Board remand” confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders”). As such, further development is necessary. Additionally, upon remand, the VA examiner should also address the Veteran’s lay statements suggesting that his bilateral knee pain began in-service and has continued ever since in determining whether it is at least as likely than not that his bilateral knee disability is directly related to service. The matters are REMANDED for the following action: 1. Obtain an addendum opinion as to the nature and etiology of the Veteran’s bilateral knee disability. The clinician is asked to opine: a. Whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s bilateral knee disability is related to his active duty service, to include the Veteran’s lay statements that his bilateral knee pain began in-service and have continued ever since? See VBMS, document labeled, CAPRI, receipt date 12/17/2019, page 1 of 462. AND b. Whether the Veteran’s bilateral knee disability is at least as likely as not caused by his service-connected lumbar spine and radiculopathy disabilities. c. Whether the Veteran’s bilateral knee disability is at least as likely as not aggravated by his service-connected lumbar spine and radiculopathy disabilities. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. (CONTINUED ON NEXT PAGE) The examiner is asked to provide the underlying reasons for all opinions expressed, and 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. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.B. Mmeje, 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.