Citation Nr: 21015032 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-11 587 DATE: March 16, 2021 REMANDED The claim of entitlement to service connection for a left knee disability is remanded. The claim of entitlement to service connection for a back disability, to include as secondary to left knee disability is remanded. The claim of entitlement to service connection for an acquired psychiatric disability, to include as secondary to a left knee disability is remanded. The claim of entitlement to a total disability rating based on individual unemployability (TDIU) as due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1969 to September 1969. This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) June 2014 rating decision of the Agency of Original Jurisdiction (AOJ) which, in part, denied service connection for back and psychiatric disabilities, found that the Veteran had failed to submit new and material evidence to reopen a previously denied claim of entitlement to service connection for a left knee disorder, and denied a TDIU. The Veteran indicated on an August 2016 VA Form 9 that he wished to testify at a Board hearing. A Travel Board hearing was scheduled for October 2018 and the Veteran was provided notice of this hearing in September 2018. However, the Veteran failed to report to the scheduled hearing and failed to explain his absence. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704 (d). The above issues were previously before the Board in December 2018 at which time the Board reopened the previously denied claim of entitlement to service connection for a left knee disorder and remanded the left knee claim (on the merits), along with the back, psychiatric, and TDIU claims for additional development. 1. The claim of entitlement to service connection for a left knee disability is remanded. The Veteran claims that his active duty service, specifically marching and running, aggravated a pre-existing left knee disability. By way of history, the Veteran’s July 1969 enlistment examination shows that he underwent left knee meniscectomy in March 1968, prior to his enlistment. Shortly after enlistment in August 1969, the Veteran complained of left knee pain and was diagnosed with derangement, internal, knee, old, and the Veteran was medically discharged due to his left knee disability in September 1969. Significantly, an August 1969 Medical Board determined that the Veteran’s left knee disability was not incurred in or aggravated by his active military service. According to the Veteran’s statement at that time, he injured his left knee in a motorcycle accident three years prior to enlistment and underwent surgery two years prior with removal of a cartilage. The Veteran submitted an initial claim for service connection for a left knee disability in September 1969. In connection with this claim, he was afforded a VA examination in November 1969. Significantly, the November 1969 VA examination diagnosed history of and residuals of injury and removal of medical cartilage left knee; internal derangement of left knee, chronic, manifested by intermittent pain and swelling and tenderness of the left patella. By rating decision dated in January 1970, the AOJ denied service connection for a left knee disorder, finding that the disability pre-existed the Veteran’s service and was not aggravated by such service. The Veteran submitted the current claim to reopen his previously denied claim of entitlement to service connection for a left knee disability in April 2013. In connection with this claim, the Veteran submitted private treatment records showing continued problems with his left knee after service. Significantly, it appears that the Veteran underwent left knee surgery again in 1973 and, after re-injuring the left knee in September 1977, underwent subsequent left knee surgeries in 1977, 1978, and 1979, to include complete fusion. His present left knee diagnoses included left knee chondromalacia, osteoarthritis, and complete fusion. By rating decision dated in June 2014, the AOJ found that the Veteran had failed to submit new and material evidence to reopen the previously denied claim of entitlement to service connection for a left knee disorder. The Veteran disagreed with this decision and perfected this appeal and, in December 2018, the Board reopened the previously denied claim based on the submission of new and material evidence. In connection with the Veteran’s appeal, VA obtained a medical opinion in February 2016. Significantly, the February 2016 VA examiner, provided a negative medical opinion, noting that pre-service and post-service left knee injuries are well documented in the record, but service treatment records fail to show any chronic left knee aggravation. Unfortunately, it is unclear whether the February 2016 VA examiner reviewed all the Veteran’s service treatment records as he did not specifically mention those showing in-service left knee complaints and treatment. A discussion of these records is crucial as they show that, as alleged, although residuals of the Veteran’s pre-service left knee injury and surgery did not preclude him from entering service, in-service left knee findings forced him to separate As such, in December 2018 the Board remanded the Veteran’s claims for additional development. Specifically, the Board directed the AOJ to obtain another medical opinion regarding the etiology of the Veteran’s current left-knee disabilities with particular attention to be paid to whether the Veteran’s service aggravated his knee condition. As directed, the AOJ obtained an addendum VA opinion in September 2019. Significantly, the September 2019 VA examiner also opined that the Veteran’s pre-existing left knee disability (medial meniscal tear, treated with open arthrotomy and complete left medial meniscectomy) was not worsened in service beyond its natural progression. As rationale for this opinion, the examiner noted that the in-service left knee diagnosis was chondromalacia patella, which is unrelated to the pre-existing knee disability. The medical evaluation in service documents that “...there was no aggravation of disability [pre-existing left knee disability] by service.” Separation was recommended on the basis of chondromalacia patella symptoms after eight days of raining. Subsequently, the Veteran was employed as a general laborer and injured the left knee slipping and falling, ultimately resulting in left knee fusion. The slip and fall resulting in left knee fusion cannot reasonably be associated with the in-service chondromalacia patella. The natural course of medial meniscectomy performed at a young age is a period (several years) of near normal knee function inevitably followed by development of severe osteoarthritis of the knee. The combination of this natural history of medial meniscectomy, coupled with the onset of chondromalacia patella with eight days of onset of service would favor separation. In June 2020, a decision review officer (DRO) deferred the Veteran’s rating on the basis that “an in-person examination will be needed to resolve this claim.” The DRO noticed that the September 2019 VA examiner found that the Veteran received treatment for chondromalacia patella while in-service, while previous examinations and AOJ decisions only noted an in-service diagnosis of “internal derangement of the knee.” As such, the DRO found that an in-person examination was necessary to determine whether the Veteran’s current left-knee condition is caused by, or a progression of, the Veteran’s in-service chondromalacia patella. However, despite the deferred rating and the DRO’s findings that the September 2019 VA examination is inadequate for adjudication purposes, the AOJ nevertheless recertified the Veteran’s claims back to the Board for readjudication. As a part of the duty to assist claimants, VA must provide a medical examination or obtain a medical opinion when such an examination or opinion is necessary to make a decision on the claim. Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007); 38 U.S.C. § 5103A(d)(1). In the present case, it was found that a medical examination is necessary to properly develop the claim. By failing to provide the Veteran with an in-person VA examination, the AOJ did not satisfy their duty to assist. While the Board regrets the additional delay, a further remand is necessary to allow the Veteran to fully develop his claim. 2. The claims of entitlement to service connection for a back disability and an acquired psychiatric disability, to include as secondary to a left knee disability, are remanded. The Veteran’s claims of entitlement to service connection for a back disability and acquired psychiatric condition are based on the theory that both conditions are secondary to a left knee disability. However, the Veteran is not currently service connected for a left knee disability. As the claim for service connection a left knee disorder is being remanded for additional development, the Board finds that his claims of entitlement to service connection for back and psychiatric disabilities are inextricably intertwined with the left knee claim, and must also be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). 3. The claim of entitlement to a TDIU is remanded. The Veteran contends that service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. Presently, the Veteran has no service-connected disabilities. However, as above, the Board has remanded the claims of entitlement to service connection for left knee, back, and acquired psychiatric disabilities. As the development of these issues is relevant to whether a TDIU can be awarded, the Board finds that the TDIU issue is inextricably intertwined with the remanded claims and must first be addressed by the AOJ. Harris, 1 Vet. App. at 180). The matters are REMANDED for the following action: 1. The AOJ shall schedule the Veteran for an in-person examination to determine the etiology of his claimed left knee disability. The examiner shall be provided with a copy of the Veteran’s claims file, as well as a copy of these remand directives. The examiner shall provide the following medical opinions: (a.) Whether or not it is as least as likely as not (a 50 percent chance or greater) that the Veteran’s currently diagnosed left knee disability is caused by, due to, or otherwise related to his active duty service; and, (b.) Whether it is as least as likely as not (a 50 percent chance or greater) that a left knee disability that pre-existed the Veteran’s active duty service, to include chondromalacia patella, residuals of a medial meniscectomy, and internal derangement of the knee, was aggravated beyond the natural progression of the respective conditions by his active duty service. The examiner shall address all relevant parts of the Veteran’s medical history, including his pre-service knee injuries, his active duty, and his post-service knee injuries. The examiner must provide a detailed rationale for their findings. If the required opinions cannot be provided without resorting to mere speculation, the examiner must explain why that is the case. 2. Only once the above has been completed, the AOJ shall adjudicate the Veteran’s claims of entitlement to service connection for a back disability and an acquired psychiatric disability, each claimed as secondary to a left knee disability, and entitlement to a TDIU. If necessary, the AOJ shall provide the Veteran with medical examinations to obtain any necessary medical opinions. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, 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.