Citation Nr: 21024373 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-37 959 DATE: April 22, 2021 REMANDED Entitlement to service connection for left knee disability, to include as secondary to lumbar spine disability, is remanded. Entitlement to service connection for traumatic brain injury (TBI), to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty with the Army from January 1973 to December 1974. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in November 2018. A transcript of the proceeding has been associated with the claims file. In May 2019, the Board denied the issues on appeal. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2020 Order, the Court granted a Joint Motion for Remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties) to vacate and remand the portion of the Board’s May 2019 decision that denied entitlement to service connection for a left knee condition, TBI, and right upper extremity condition. Importantly, a subsequent July 2020 rating decision awarded service connection for right upper extremity radiculopathy; representing a full grant of the benefit sought on appeal. As such, this issue is no longer in appellate status. Entitlement to service connection for left knee disability, to include as secondary to lumbar spine disability, is remanded. The JMR found that the Board failed to provide adequate reasons and bases for not affording the Veteran a VA examination to determine the etiology of his left knee disability. The JMR noted that the parties agreed the Veteran appears to have met the standard set forth under McLendon v. Nicholson, 20 Vet. App. 79, 85-86 (2006). In this regard, the Veteran had a current disability of internal derangement of the left knee. Moreover, there was an in-service incident of motor vehicle accident in August 1973. Importantly, the Veteran’s lay statements suggested that his disability was related to the accident and the record contained a May 2016 private opinion indicating that the Veteran has persistent left knee pain since the rollover accident. Accordingly, the Veteran should be afforded a VA examination to address the etiology of any left knee disability. The JMR also pointed out that whether the Veteran’s left knee is secondary to his lumbar spine was also reasonably raised by the record. As such, the VA examiner must also address whether the Veteran’s left knee is proximately due to or aggravated by his service-connected lumbar spine disability. Entitlement to service connection for TBI, to include as secondary to service-connected disabilities, is remanded. The JMR also directed the Board to address whether the July 2014 TBI examination was adequate and if not, afford the Veteran a VA examination to determine whether he has been diagnosed with TBI due to the 1973 motor vehicle accident, and whether any symptoms are secondary to a service-connected disability. In this regard, the July 2014 VA examiner found that there was no diagnosis of TBI as there was no pathology to render a diagnosis. However, the examiner did not clearly explain why some of the symptoms found on examination, including mild memory loss, mildly impaired judgment, mild motor activity impairment and three or more subjective complaints, were not attributable to a TBI that occurred during the August 1973 motor vehicle accident. Likewise, the examiner did not consider the May 2016 and August 2016 private evaluations that indicated the Veteran did have a TBI due to the in-service accident. Further, there has been no opinion concerning the Veteran’s assertion that his symptoms are secondary to a service-connected disability. In light of the above, the Board must find that the July 2014 VA examination is inadequate and the Veteran should be afforded a new examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any left knee disability. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner must clearly identify all disabilities pertaining to the Veteran’s left knee. With respect to each diagnosed disability, the examiner must opine whether it is at least as likely as not (1) began during active service, (2) manifested within one year after discharge from active service, (3) was noted during active service with continuity of the same symptomatology since service, or (4) related to an injury, event, or disease during active service, to include the August 1973 motor vehicle accident. The examiner must also opine whether it is at least as likely as not that any left knee disability is proximately due to or aggravated (any incremental increase in disability or any additional impairment of earning capacity regardless of its permanence) by his service connection lumbar spine disability, to include any altered gait issues due to such disability. A detailed rationale for all opinions must be provided. 2. Schedule the Veteran for an examination with an appropriate medical professional to determine the nature and etiology of his claimed TBI. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions If the examiner finds that the Veteran does not suffer from a TBI, this finding must be reconciled with the May 2016 and August 2016 private evaluations that indicated the Veteran did have a TBI. If any prior diagnosis of TBI cannot be reconciled with the current findings, explain why. Moreover, if the examiner finds that the Veteran suffers from any symptoms of TBI, this finding must also be reconciled if there is no diagnosis. With respect to any diagnosis of TBI, the examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) caused by or otherwise related to the Veteran’s active duty service, to include the August 1973 motor vehicle accident. The examiner must also opine whether it is at least as likely as not that any documented symptoms are proximately due to or aggravated (any incremental increase in disability or any additional impairment of earning capacity regardless of its permanence) by his service connected disabilities.   A detailed rationale for all opinions must be provided. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats 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.