Citation Nr: 21024316 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-37 716 DATE: April 22, 2021 REMANDED Entitlement to service connection for a left knee and leg disability, to include as secondary to a service-connected left ankle disability, is remanded. REASONS FOR REMAND The Veteran had active military service in the United States Army from August 1978 to August 1982. This matter is on appeal from a September 2014 rating decision. In March 2017, the Veteran testified at a hearing before a Decision Review Officer. A transcript of this hearing is associated with the record. In a January 2020 decision, the Board denied entitlement to service connection for a left knee and leg disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2020 Order, the Court granted a December 2020 Joint Motion for Remand (JMR) of the Veteran and the Secretary of Veterans’ Affairs (the Parties) and vacated the January 2020 Board decision. The Court then remanded the case to the Board for readjudication and disposition consistent with the JMR. In the December 2020 JMR, the Parties stated that the Board erred by failing to provide an adequate statement of reasons or bases for its implicit finding that VA had satisfied its statutory duty to assist. Specifically, the Board did not consider or discuss a notation in Kenosha Memorial Hospital’s July 2014 response to VA’s request for treatment records which advised that a request for surgery records had to go through Hospital Medical Records since clinic records are only kept for 20 years. The Parties also found that the Board erred by failing to consider and discuss the Veteran’s March 2017 hearing testimony that he had surgery at Kenosha Memorial Hospital for his bone spur. On remand, these private hospital records must be obtained. The Board notes that in a December 2020 statement the Veteran’s representative stated that the May 2017 VA examiner failed to consider the Veteran's lay statements regarding his left knee and leg disabilities and failed to provide an opinion regarding direct service connection. Accordingly, on remand an addendum opinion should be obtained. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following actions: 1. Contact the Veteran and request that he either submit, or provide VA sufficient information and authorization to obtain any private treatment records related to his left knee and left leg disabilities, including complete records from the Hospital Medical Records department at Kenosha Memorial Hospital, to include any records related to bone spur surgery. In order to expedite this case, the Veteran is asked to obtain these records himself and inform the RO/AMC that all appropriate records have been submitted in order to ensure that all pertinent records have been submitted in a highly timely manner so that the VA may adjudicate this case quickly. 2. Obtain an appropriate addendum by an examiner regarding the nature and etiology of the Veteran’s left knee and leg disability. Unless the examiner finds that a new examination is required, the Veteran need not be examined again. The claims file, including a copy of the December 2020 Joint Motion for Remand, must be made available to the examiner for review who should indicate that the claims file was reviewed. The examiner should provide the following opinion(s): a) Is it at least as likely as not (50 percent or more probability) that a left knee and leg disability had its onset in or is etiologically-related to the Veteran's active duty service? b) If the answer to part (a) above is “no,” is it at least as likely as not (50 percent probability or more) that the Veteran’s left knee and leg disability is (a) proximately due to or the result of the Veteran's service-connected left ankle disability, or (b) aggravated (any incremental increase in the left knee and leg disability beyond its normal progression) by his service-connected left ankle disability? If it is determined that the left knee and leg disability is related to a service-connected disability, to the extent possible, the examiner should indicate the approximate degree of disability or baseline before the onset of aggravation. The examiner is asked to consider and discuss as necessary the pertinent evidence of record to include the Veteran’s lay statements, testimony and complaints concerning the onset of his left knee and leg disability, including those made to medical providers. The Board, by this remand, makes no determination, expressed or implied, concerning the credibility of any statements on file. The report of examination should include the complete rationale for all opinions expressed. The phrase “at least as likely as not” does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adams, 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.