Citation Nr: 21026934 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-35 484 DATE: May 4, 2021 ORDER Entitlement to service connection for a left knee disability is denied. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a right ankle disability is remanded. FINDING OF FACT The Veteran does not have left knee disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1996 to October 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019 correspondence, the Veteran indicated that he was seeking a higher disability rating for his service-connected right knee disability. The Board notes that there is not a current claim pending for an increased rating for the Veteran's service-connected right knee disability and, therefore, it is not addressed herein. In addition, the Board notes that the Veteran filed a claim for entitlement to service connection for bilateral hearing loss; however, the Veteran did not include such claim on his VA Form 9. Accordingly, entitlement to service connection for bilateral hearing loss was not appealed to and is not before the Board. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Secondary service connection may be granted when a disability is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 447-48 (1995). Entitlement to service connection for a left knee disability In July 2019 correspondence, the Veteran stated: "The first thing I would like the Board to be aware of is that I have no interest in pursuing a claim related to my left knee. I am unaware how any claim regarding the left knee came about and wish that portion of my claim to be disregarded." A July 2014 VA treatment record contains the only left knee complaint and notes that the Veteran reported that he placed more pressure on his left knee due to his service-connected right knee disability. The Veteran was afforded a VA examination in March 2015. No left knee disability was noted. The Veteran's left knee retained 5/5 strength and normal stability. The VA examiner determined that they Veteran's left knee did not cause any functional impairment. Treatment records and the March 2015 VA examiner's report are negative for any left knee diagnosis. The only indication of a potential problem was the July 2014 VA treatment record which noted that the Veteran reported placing additional pressure on his left knee; however, there is no indication that the reported pressure resulted in a disability. The Veteran himself has even attested that he does not have a left knee disability. As previously mentioned, the first prong of a service connection claim is a current disability. The evidence does not demonstrate that the Veteran had a left knee disability during the pendency of the appeal. The U.S. Court of Appeals for Veterans Claims has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, the Board must deny the claim. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. The Veteran contends that his low back disability is secondary to his service-connected right knee disability which has altered his gait. The AOJ obtained a March 2015 medical opinion; however, the opinion did not address secondary service connection. Neither secondary causation nor secondary aggravation was addressed. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). The Board notes the November 2020 Informal Hearing Presentation submitted by the Veteran's representative cites to medical articles in support of the contention that the Veteran's service-connected right knee disability altered his gait causing or aggravating his low back disability. The Board also notes, however, that the March 2015 VA examiner did not address whether the Veteran's service-connected right knee disability altered the Veteran's gait resulting in additional disability. Moreover, the Board notes that a February 1999 report of medical history noted that the Veteran had recurrent back pain or a back injury and a February 1999 report of medical assessment noted that the Veteran's back had worsened since his prior medical assessment and that he intended to seek VA disability benefits for a back disability. On remand, the VA examiner must readdress whether direct service connection is warranted taking into consideration the February 1999 service treatment records. When VA undertakes to provide a medical examination, it "must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, remand is required to obtain a VA medical opinion addressing direct and secondary theories of entitlement for the Veteran's claimed low back disability. 2. Entitlement to service connection for a right hip disability is remanded. The Veteran contends that he has a right hip disability secondary to his service-connected right knee disability which has altered his gait. The AOJ obtained a March 2015 medical opinion; however, the opinion did not address whether the Veteran's right hip disability was aggravated by his service-connected right knee disability. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Therefore, the Board finds that a remand is necessary to obtain an adequate medical opinion regarding the nature and etiology of the Veteran's claimed right hip disability. In addition, the Board notes that the November 2020 Informal Hearing Presentation submitted by the Veteran's representative cites to medical articles in support of the contention that the Veteran's service-connected right knee disability altered his gait causing or aggravating his right hip disability. The Board also notes, however, that the March 2015 VA examiner did not address whether the Veteran's service-connected right knee disability altered the Veteran's gait resulting in additional disability. When VA undertakes to provide a medical examination, it "must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, remand is required to obtain a VA medical opinion addressing whether the Veteran's service-connected right knee disability caused or aggravated his right hip disability. 3. Entitlement to service connection for a right ankle disability is remanded. The Veteran contends that he has a right ankle disability secondary to his service-connected right knee disability which has altered his gait. The AOJ obtained a March 2015 medical opinion; however, the opinion did not address whether the Veteran's right ankle disability was aggravated by his service-connected right knee disability. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). In addition, the Board notes that the November 2020 Informal Hearing Presentation submitted by the Veteran's representative cites to medical articles in support of the contention that the Veteran's service-connected right knee disability altered his gait causing or aggravating his right ankle disability. The Board also notes, however, that the March 2015 VA examiner did not address whether the Veteran's service-connected right knee disability altered the Veteran's gait resulting in additional disability. When VA undertakes to provide a medical examination, it "must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, remand is required to obtain a VA medical opinion addressing whether the Veteran's service-connected right knee disability caused or aggravated his right ankle disability. By this remand, the Board makes no determination, express or implied, concerning the credibility of the Veteran's statements and contentions. The matters are REMANDED for the following action: 1. Schedule a VA examination with an appropriate examiner to determine the nature and etiology of the Veteran's claimed low back, right hip, and right ankle disabilities. The Veteran's electronic claims file must be made accessible to the examiner, and the examiner should indicate that the claims file was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. 2. The examiner must provide an opinion as to the following: (A) Is it at least as likely as not (50 percent or greater probability) that any low back disability had its onset during his active service, or is otherwise etiologically related to such service? (B) Is it at least as likely as not (50 percent or greater probability) that the Veteran's low back disability was caused OR aggravated by his service-connected right knee disability? (C) Is it at least as likely as not (50 percent or greater probability) that the Veteran's right hip disability was caused OR aggravated by his service-connected right knee disability? (D) Is it at least as likely as not (50 percent or greater probability) that the Veteran's right ankle disability was caused OR aggravated by his service-connected right knee disability? The examiner must consider the Veteran's lay statements regarding his alleged altered gait. A complete rationale should be given for each opinion expressed. 3. Then, readjudicate the claims. If the determination of the claims remains unfavorable to the Veteran, issue a Supplemental Statement of the Case and afford him a reasonable period of time to respond before returning the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Palombi 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.