Citation Nr: 21026073 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 09-39 152 DATE: April 29, 2021 ORDER Service connection for a left knee disability, to include degenerative joint disease (DJD), to include as secondary to service-connected right knee disabilities, is remanded. REASONS AND BASES FOR REMAND The Veteran served on active duty in the United States Army from November 1984 until his honorable discharge in June 1992 and on active duty for training (ACDUTRA) from June 2005 to October 2005. This appeal is being treated expeditiously on the Board of Veterans’ Appeals’ (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d). This case comes before the Board on appeal from May 2009 rating decision by the Roanoke, Virginia, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied service connection for a left knee disability. In April 2014, the Veteran testified at a Board hearing before a Veterans Law Judge. In a March 2021 correspondence, the Board informed the Veteran that the judge who heard his case was no longer with the Board. The Veteran was offered the opportunity to request another hearing within thirty days from the date of the correspondence. The Veteran declined a new hearing in writing. The Board will adjudicate his appeal based on the evidence of record. See 38 U.S.C. § 7107(c); 38 C.F.R. §§ 19.3(b), 20.707 In a March 2018 decision, the Board denied the Veteran’s claim for service connection for a left knee disability. The Veteran subsequently appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2019 memorandum decision, the Court vacated and remanded the Board’s March 2018 decision because the October 2014 VA medical opinion, on which the Board relied, was inadequate. The examiner failed to address whether there was any increase in the symptomatology of the Veteran’s left knee due to his service-connected right knee disabilities. The Board remanded the claims in August 2020 and December 2020 in order to comply with the Court’s December 2019 Memorandum Decision. The case now returns to the Board for adjudication. The Board finds that there has not been substantial compliance with the Board’s previous remand directives regarding the issues on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). Although the RO obtained a new VA-examination and opinion addressing the Veteran’s left knee disability, the examiner relied on an inaccurate factual premise. Within the examiner’s direct service-connection opinion, he stated, “The Veteran’s service treatment records are silent for a left knee injury or treatment.” This statement is incorrect. An October 12, 1989, service treatment record documented that the Veteran suffered a left leg/knee injury playing football and complained of pain from the back of the left knee to the left upper thigh. He complained the pain was so intense he could not move his leg. In addition, the Board finds the addendum opinions provided by the examiner are unclear and conclusory. As to his direct service-connection opinion, the examiner stated, “The Veteran’s bone scan shows multiple joints to have DJD all of which are not weightbearing. The Veteran’s condition is from normal aging, wear and tear.” As to his secondary service-connection opinion, the examiner stated, “Secondary gait changes in patients with medial compartment knee [osteoarthritis (OA)] may be associated with increased load not only on knee cartilage, but also on cartilage at the ankle and the hip ultimately leading to a faster rate of progression of OA in the affected limb only.” These rationales do not assist the Board in understanding why the Veteran’s left knee disability is less likely than not due to an in-service injury or secondary to his service-connected right knee disabilities. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“It is the fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion.”). Accordingly, the matter is REMANDED for the following actions: 1. Obtain any of the Veteran’s outstanding VA medical records and associate them with the claims file. 2. After any additional records are associated with the claims file, obtain an addendum opinion from the September 2020 VA-contracted examiner, or another appropriately qualified clinician if the examiner is unavailable, to provide an opinion addressing the etiology of the Veteran’s left knee disability. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s left knee disability had its onset in or is otherwise etiologically related to an in-service event, injury, or disease. (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s currently diagnosed left knee disability was caused by (proximately due to or as the result of) his service-connected right knee disabilities. (c.) Whether it is at least as likely as not (a 50 percent probability or more) that the Veteran’s currently diagnosed left knee disability was aggravated by his service-connected right knee disabilities. The examiner is advised “aggravation” means an increase in the severity of the underlying disability beyond its natural progression. In rending his or her opinion, the examiner should consider and address the following, in addition to any other relevant evidence: (a.) An October 12, 1989, service treatment record that documented that the Veteran suffered a left leg/knee injury playing football and complained of pain from the back of the left knee to the left upper thigh. He complained the pain was so intense he could not move his leg. The examiner is reminded to consider the Veteran’s lay statements regarding the nature and onset of his disability, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran’s assertion of a left knee disability in service or the assertion that the Veteran’s service-connected right knee disabilities led to his currently diagnosed left knee disability. A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. If the examiner relies on medical treatises, the examiner should identify the treatises. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question(s). M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.