Citation Nr: 21027058 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 08-06 731 DATE: May 4, 2021 REMANDED Entitlement to service connection for a right knee disability, to include as secondary to the service-connected left knee disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1966 to June 1969, with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before the undersigned Veterans Law Judge during a February 2012 hearing. A transcript of the hearing is associated with the Veteran's claim file. This matter was most recently before the Board in November 2020, wherein the Board remanded the issue for an addendum medical opinion. The matter has returned to the Board for adjudication. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran contends that his right knee disability is related to a motor vehicle accident in service and/or related to a helicopter crash during combat operations while he was serving in the Republic of Vietnam. In the alternative, he asserts that his right knee disability is secondary to his service-connected left knee disability. The November 2020 Board decision remanded the issue as the last VA opinion of record from January 2020, was inadequate. The Board found that the opinion was inadequate because the VA examiner did not consider the Veteran's lay statements of bilateral knee pain since service. The Board also found that the Veteran's right knee disability was less likely than not proximately due to or the result of the Veteran's service-connected left knee disability. Furthermore, the Board determined that the January 2020 VA examiner did not address the aggravation element of secondary service connection. Lastly, the Board found that the VA examiner's opinion appeared to be based on an inaccurate factual premise as the medical records indicated right knee disabilities and limitations prior to a 2011 VA examination and that the Veteran had an antalgic gait. The Board noted that a March 2011 VA treatment record reflected that the Veteran was assessed with a bilateral torn meniscus in both knees while a May 2004 VA treatment record reflects that he had degenerative joint disease of the knees. VA treatment records from December 2000, March 2001, and September 2008 document that the Veteran ambulated with an antalgic gait. In the January 2020 knee VA examination, the physician did not include a diagnosis for the Veteran's knee conditions. The RO requested clarification from the VA examiner regarding a diagnosis. The January 2020 VA examiner was no longer available, and in July 2020, a different physician specified that the Veteran had bilateral meniscal tear and left degenerative joint disease. However, it is unclear whether the VA examiner considered the May 2004 that showed the Veteran had degenerative joint disease of both knees. In January 2021, an addendum medical opinion was obtained by the VA. The VA examiner opined that the condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. She provided rationale that the Veteran's current claimed right knee condition was less likely than not incurred in service as the Veteran reported to sick call on a multitude of occasions and the only complaint of right knee pain was "soreness" in October 1967 and he was noted to have a 1cm diameter superficial abrasion at that time. She also indicated that there was no record of right knee pain until 1985. The VA examiner noted that in a May 1995 document, the Veteran complained of bilateral knee "discomfort" and stated he "crushed" his left meniscus in a motorcycle accident and x-rays at that time were normal. While the examiner stated that she took the specific statements into consideration as directed by the November 2020 Board decision, she remarked that the Veteran injured his left knee when he had a motorcycle accident in July 1966 requiring fairly extensive treatment and he did not report to sick call for recurrent left knee pain while on active duty. She stated that a March 2004 document indicated that the Veteran's orthopedic problems were due to a helicopter crash while in Vietnam, not due to the motorcycle accident. She found that the November 2006 psychiatric examination acknowledged that the Veteran was confirmed to have gone to Vietnam but encountered no significant combat and that his claims of this were vague. She emphasized that the Veteran noted that his injuries were due to a helicopter crash in Vietnam, which is not documented elsewhere in the record. Additionally, the VA examiner opined that that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected left knee condition. As rationale, the examiner stated that the radiographic evidence does not suggest that his left knee condition contributed to or aggravated his right knee condition and that the mild narrowing of the right knee joint is not an unexpected finding at his age at the time of that x-ray. Here, the Board finds that the January 2021 medical opinion is inadequate as the VA examiner again relied on the absence of treatment records to provide a negative statement. The examiner primarily based her opinion on the absence of medical documentation in the Veteran's service treatment records (STRs) and absence of continuous treatment following service. The Board has found that an examination is inadequate where the examiner relies on the absence of evidence in the STRs to provide a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Furthermore, the VA examiner did not adequately address the right knee condition with respect to the service-connected left knee condition as there was no discussion related to the Veteran's antalgic gait and whether this caused or aggravated his right knee disability. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also finds that the Veteran's statements that his orthopedic conditions were due to a helicopter crash when he was stationed in Vietnam must be addressed. With regard to the in-service combat presumption, if an injury or disease was alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, if consistent with the circumstances, conditions, or hardships of service, even if there is no official record of the incident. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). However, the provisions of 38 U.S.C. § 1154(b) do not establish a presumption of service connection but eases the combat veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. See Caluza v. Brown, 7 Vet. App. 498 (1995). That is, the statute provides a basis for determining whether a particular injury was incurred in service, but not a basis to link the injury etiologically to the current condition. Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007); Cohen v. Brown, 10 Vet. App. 128, 138 (1997); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996). In the absence of clear and convincing evidence to the contrary, the incurrence or aggravation element of a service connection claim can be satisfied by satisfactory lay or other evidence when consistent with the circumstances, conditions, or hardships of combat service, notwithstanding the absence of an official record. 38 U.S.C. § 1154(b). Caluza v. Brown, 7 Vet. App. 498 (1995); Arms v. West, 12 Vet. App. 188 (1999); Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). Regarding combat, the Veteran's military personnel records do not reflect receipt of medals, badges, or decorations that specifically denote combat with the enemy. However, the personnel records do confirm that he served in the Republic of Vietnam during the Vietnam War and served in the Vietnam Counter-Offense Phase III and Vietnam Offense Phase TET. He was awarded an Aircraft Crewman Badge, which the criteria for this award may be awarded for aircraft supervisors with a flying status. His DD Form 214 revealed a military occupational specialty (MOS) of helicopter repairman. He served in a war zone. This is also supportive of combat. The Veteran has also credibly described his combat experiences to VA medical personnel. He credibly states he was exposed to enemy fire on a regular basis in Vietnam, during which he had to run for cover. See May 2017 VA Posttraumatic Stress Disorder (PTSD) examination. A VA General Counsel Precedential Opinion holds that credible lay statements can also establish combat status. VAOGCPREC 12-99, at para. 11 (Oct. 18, 1999). Therefore, there is satisfactory evidence the Veteran engaged in combat during his military service in Vietnam. See VAOPGCPREC 12-99 (October 18, 1999); Moran v. Peake, 525 F.3d 1157, 1159 (Fed. Cir. 2008). Specifically, the Veteran has stated that his orthopedic injuries stem from a combat-related helicopter crash during his time in Vietnam. See March 2004 VA treatment record. He also stated that he has pain in his knees since the Army, especially since Vietnam. See July 2004 VA treatment record. In support of his statement, the Veteran had submitted photographs showing the ruins of a village after a TET offensive attack, sandbag bunkers, and the remnants of a crashed helicopter that the Veteran had flown in. It follows that the Veteran's lay statements are sufficient to show in-service incurrence of his disabilities during combat, provided that the incurrence of the disease or injury actually occurred in combat. See 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304(d) (emphasis added). And although the combat presumption is in effect, the Veteran must still present evidence etiologically linking a current disability to his confirmed in-service combat experiences. Dalton, 21 Vet. App. at 36-37; Cohen, 10 Vet. App. at 138. As such, based on the findings that the Veteran was engaged in combat in which his helicopter was shot down, the Board finds that an addendum opinion must be obtained which takes his combat experiences into consideration and addresses the deficiencies of the inadequate examination. The matters are REMANDED for the following action: 1. Obtain VA treatment records from March 2021 to present. All reasonable attempts should be made to obtain any identified records. 2. After completion of the above, obtain an addendum opinion from the VA provider who issued the January 2021 medical opinion to address the claim for the right knee disability (or is no longer available, an appropriate replacement).The decision for an in-person examination of the Veteran is left to the discretion of the examiner.. The electronic records, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) The examiner should identify any current diagnoses the Veteran has presented related to the right knee disability at any time during the claim period (i.e., from July 2008 to the present). b) For each diagnosis, the examiner shall opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such condition (1) had its onset during the Veteran's service; (2) manifested within one year from service; or (3) is otherwise related to service, to include the 1966 in-service motor vehicle accident (MVA) and/or a combat-related helicopter crash in the Republic of Vietnam. In providing the above opinion, the examiner should consider and address as appropriate (1) the January 1969 STR reflecting difficulty walking; (2) the May 1995 treatment record reflecting the Veteran's complaints of bilateral knee discomfort and intermittent swelling with a 20 years old trauma from a 1966 MVA; (3) the March 2001 VA treatment record reflecting the Veteran's report of long standing bilateral knee pain since his in-service 1966 injury and the assessment that he has signs and symptoms suggestive of longstanding bilateral knee pain possibly secondary to an accident occurring in 1966; (4) the July 2004 VA treatment record reflecting the Veteran's report of knee pain since service that has significantly worsened during the past 15 years; and (5) the March 2004 VA treatment record reflecting the Veteran's statement that his orthopedic injuries stem from a combat-related helicopter crash during his time in Vietnam. c) For each diagnosis, the examiner shall opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's disability was either (1) caused by OR (2) aggravated by his service-connected left knee disability. In rendering the above opinion, the examiner must address both causation and aggravation. In other words, even if the Veteran's service-connected left knee disability did not cause his current right knee disability, the examiner should still address whether his left knee disability could have worsened his right knee disability. If aggravation is found, the examiner should quantify the degree of aggravation, if possible, and state whether there was an increase in disability regardless of permanence, but medially ascertainable. In providing the above opinion, the VA examiner should consider and address as appropriate (1) the Veteran's assertions that over time the pain in his left knee has caused him to favor and over-compensate his right knee, which has contributed to and/or caused/aggravated his right knee disability; (2) the December 2000 VA treatment record reflecting the Veteran had an antalgic gait; (3) the March 2001 VA treatment record reflecting that the Veteran ambulated with an antalgic gait with a straight cane and bilateral knee braces; and (4) the September 2008 VA treatment record reflecting the Veteran had a mildly antalgic gait. The rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis or clinical findings and must reflect consideration of the competent lay assertions of pertinent symptomology from service to the present. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.