Citation Nr: 21021026
Decision Date: 04/09/21	Archive Date: 04/09/21

DOCKET NO. 09-20 086
DATE: April 9, 2021

REMANDED

Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty from November 1982 to January 1993.  

This case has been before the Board multiple times, most recently in  November 2020 when it was remanded for additional developments. There has not been substantial compliance with the remand directives and the claim must be remanded again.  Stegall v. West, 11 Vet. App. 268 (1998).  

Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee disability.

The claim must be remanded again because the VA opinions obtained on remand are still inadequate. One January 2021 VA opinion provided a negative opinion but used the incorrect standard for aggravation, despite the Board’s specific reference to the appropriate standard. The opinion is further inadequate because as rationale, the examiner only referred to the fact that arthritis in both knees was diagnosed at the same time. 

A second VA examiner provided an addendum opinion in January 2021 to clarify the significance of both knees being diagnosed at the same time, but provided only a negative opinion as to direct service connection and did not address secondary service connection.

The matters are REMANDED for the following action:

1. Obtain an addendum opinion from the VA examiner who provided January 2021 VA opinion, (or another appropriate provider if January 2021 examiner is unavailable) to determine the nature and likely etiology the Veteran’s left knee disability.  Copies of all pertinent records must be made available to the examiner for review.  If the examiner determines that an opinion cannot be provided without an examination, (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) one should be scheduled. Based on the review of the record (and examination if needed), the examiner should answer the following:    

Is it at least as likely as not that the Veteran’s currently diagnosed left knee disability is (i) caused or (ii) aggravated by (defined as any increase in disability) the Veteran’s service-connected right knee disability? Why or why not? 

The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate.  If an opinion cannot be provided, the examiner should indicate why.    

2. Confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum.

 

M.E. Larkin

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Eric Struening

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.