Citation Nr: 21015949 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 19-07 230 DATE: March 18, 2021 REMANDED Entitlement to a rating in excess of 10 percent for right ankle osteoarthritis is remanded. Entitlement to a rating in excess of 10 percent for arthritic residuals of left ankle injury is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service in the Army from February 1981 to February 1984. The appeal originates from April 2014 and August 2017 decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously remanded in April 2019 for additional development. 1. Entitlement to a rating in excess of 10 percent for right ankle osteoarthritis is remanded. 2. Entitlement to a rating in excess of 10 percent for arthritic residuals of left ankle injury is remanded. 3. Entitlement to service connection for a right knee disorder is remanded. 4. Entitlement to service connection for a left knee disorder is remanded. 5. Entitlement to TDIU is remanded. Following the August 2019, October 2019, and December 2019 supplemental statements of the case, relevant Social Security Administration records, VA treatment records, and a VA ankle examination were associated with the file pertaining to the Veteran’s medical history for the knees, his employability, and the current symptoms of his ankle disabilities. VA sent correspondence to the Veteran in January 2021 requesting clarification as to whether he waived Agency of Original Jurisdiction review of this evidence and advised him that failure to respond within 45 days would result in remand of the appeal. No response has been received. Accordingly, remand of all claims is necessary to afford him due process. In April 2020, the RO completed its second attempt to obtain a completed VA Form 21-4192 from the employers listed in the March 2020 VA Form 21-8940, to no response. VA’s duty to assist in obtaining private records is limited to two requests, and thus, the Board shall not request further development, and the Veteran is hereby notified of the employers’ nonresponse and his right to obtain the evidence on his own. 38 C.F.R. § 3.159(c)(1), (e). The Veteran is ultimately responsible for providing the evidence to substantiate his claim of entitlement to a TDIU. Although VA has a duty to assist in the development of a Veteran’s claim, the Veteran is remined that this duty is not “a one-way street.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In March 2020, the Veteran’s attorney submitted an appellate brief arguing that the Veteran’s right knee service connection claim was one for aggravation under 38 U.S.C. § 1153. The Board disagrees. While it is true that the Veteran reported a right knee disability at service entrance, the examiner check marked that the Veteran’s musculoskeletal system was normal. In the “notes” section of the entrance examination, the examiner noted the Veteran’s prior right knee complaints/findings, but stated that it resulted in “no disability” at service entrance. Similarly, it was noted on the November 1980 Report of Medical History, that the Veteran’s prior right knee Osgood deformity was “asymptomatic.” Pursuant to 38 C.F.R. 3.304(b), “the veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service…only such conditions as are recorded on examination reports are to be considered as noted.” Given the normal clinical examination and asymptomatic findings documented on the November 1980 entrance examination, the Board finds that the Veteran was sound at service entry. To the extent that service treatment records and post service treatment records document pre-existing right knee pathology, their statements do not encompass the correct evidentiary standard and do not amount to clear and unmistakable evidence sufficient to rebut the presumption of soundness. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003) (“Clear and unmistakable” evidence requires that the evidence is obvious, manifest, and undebatable). Accordingly, the Veteran’s right knee claim shall be considered under a direct service connection theory of entitlement, as well as the secondary service connection theory raised by the Veteran and the evidentiary record. With respect to the knees, the Board remanded the matter in April 2019 for an examination with opinion addressing direct and secondary service connection due to the service-connected ankle disabilities. Though these were obtained in August 2019, the opinions regarding the aggravation prong of a secondary service connection were insufficient for adjudicative purposes. See 38 C.F.R. § 3.310. Regarding the right knee secondary to the Veteran’s service-connected ankle disabilities, the examiner provided the same rationale issued for his direct service connection opinion and did not specifically address aggravation. Regarding the left knee secondary to the Veteran’s service-connected ankle disabilities, the examiner stated that the knee disability was due to a 2013 post service baseball injury and did not discuss aggravation specifically. As such, an addendum opinion should be obtained. Lastly, obtain all VA treatment records from February 2020 to the present, and associate them with the electronic claims file. 38 C.F.R. § 3.159(c)(2) and (3). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from February 2020 to the present. 2. Request an addendum opinion from the August 2019 knee examiner or another qualified examiner. The examiner is asked to opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s right and left knee disorders underwent any incremental increase in disability, regardless of its permanence, due to the Veteran’s service-connected right and/or left ankle disability. See Ward v. Wilkie, 31 Vet. App. 233 (2019). The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. [Continued on Next Page] 3. Review all evidence received since the August 2019, October 2019, and December 2019 supplemental statements of the case and readjudicate the appeal. M. Galante Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alhinnawi 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.