Citation Nr: 21028464 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 12-31 767 DATE: May 11, 2021 REMANDED Entitlement to service connection for a bilateral knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from February 1963 to May 1969. The Veteran also had service in the U.S. Marine Corps Reserves, including a period of active duty for training (ACDUTRA) from July 10, 1976, to July 25, 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied service connection for degenerative arthritis, bilateral knees. Following two remands, in a March 2019 decision the Board denied service connection for bilateral knee disability, and the Veteran appeals to the U.S. Court of Appeals for Veterans Claim (Court). Both parties submitted a Joint Motion for Remand in August 2020, in which they requested the Court to vacate the March 2019 Board decision and return the matter to the Board. The Court granted this motion in August 2020, and remanded the matter for action consistent with terms of the Joint Motion. In January 2021 the Board remanded the matter for further evidentiary development. In March 2021, the RO issued a Supplemental Statement of the Case (SSOC) and the Veteran's appeal is now returned to the Board for further appellate processing. The Veteran asserted that her current bilateral knee disability was due to all the physical fitness demands and physical trainings she performed while in the Marine Corps. The Veteran also notes she while she in the Marine Corps she was treated for different knee injuries such as tendonitis. See August 2009 Statement in Support of Claim; October 2012 Form 9. The Veteran, through her representative, alternatively contends that she developed bilateral knee disability secondary to weight-gain caused by inactivity due to her service-connected PTSD. See January 2020 Informal Hearing Presentation. Obesity, in and of itself, is not a disability for VA compensation purposes. Marcelino v. Shulkin, 29 Vet. App. 155 (2018); Walsh v. Wilkie, 32 Vet. App. 300 (2020). VA's Office of General Counsel has issued VAOPGPREC 1-2017, which discusses service connection based on obesity. Particularly relevant to this claim is that "obesity may be an 'intermediate step' between a service-connected disability and a current disability that may be service connected on a secondary basis." The Board notes that part of the January 2021 remand the RO was instructed to obtain the Veteran's VA medical records from September 2018 to present from Palm Desert CBOC (Community Based Outpatient Clinic). A review of the records shows these VA medical records have been received and associated with the claims file. The January 2021 Board remand also instructed the examiner to consider the following evidence in rending their opinion regarding a connection between the Veteran's current bilateral knee disability and her service: June 1963 service treatment record for right patella complaints; and July 1976 service treatment record for left knee tendonitis. In February 2021 a VA medical opinion was obtained. Following a review of the claims file, the VA examiner opined the bilateral knee disability was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained the Veteran was in the Marine Corps from 1963 to 1969 and worked in communications. The Veteran went on to work for the Federal government in logistics and at Home Depot. The VA examiner noted a review of service treatment records reveals that the Veteran was noted to have tendonitis from running in 1976, and review of the Veteran's post service records revealed the Veteran was noted to have knee pain in 2002, 2005, 2010, 2013, 2016, 2017 to present. An orthopedic evaluation in 2013 noted knee pain since military service and the provider recommended operative intervention to include a total knee replacement. The VA examiner cites to multiple other notes which endorse significantly elevated BMI as a potential etiology for her bilateral knee disability. The VA examiner also noted there are multiple other evaluation for the Veteran's bilateral knee disability where the providers opined that the Veteran's bilateral knee disability was less likely than not due to injuries or events sustained during her military service. The VA examiner also cited to a 2002 and 2010 bilateral knee x-rays, which revealed degenerative joint disease (DJD) and a 2019 bilateral knee x-ray which revealed bilateral tricompartmental DJD. The VA examiner concluded there is insufficient evidence to support a finding that the Veteran's bilateral knee DJD is due to injuries or events sustained during her military service. The VA examiner specifically notes the Veteran's medical records are silent for a significant knee injury during her military service and are silent for evaluation and treatment of a knee disability from the time of discharge until 2002, which is a period of over thirty years. The VA examiner also notes another etiology, which is well documented in her records, exists, specifically, chronically elevated BMI which could account for the bilateral, symmetric, knee degenerative changes noted on the x-rays. Finally, the VA examiner explains radiographic evaluation reveals no evidence of a specific traumatic event such as a fracture or bony lesion that would provide evidence for a significant knee injury that could have been sustained during the Veteran's military service. The Board finds the above February 2021 VA opinion is inadequate. The VA examiner failed to substantially comply with the Board remand instructions, specifically the VA examiner did not address all the Veteran's in-service treatment records that mentioned her knees. The VA examiner only considered the Veteran's July 1976 in-service treatment for tendonitis but did not address the June 1963 in-service treatment records for tenderness in right patella. This has not escaped the attention of the Veteran's representative, who identified this inadequacy in the April 2021 Informal Hearing Presentation. It is also unclear whether the VA examiner recognized that the July 1976 left knee tendonitis occurred during a period of ACDUTRA. The VA examiner also opined that the Veteran's chronically elevated BMI could be the cause of her current disabilities. It is well established that medical opinions that are inconclusive in nature do not provide a sufficient basis upon which to support a claim. See e.g. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding doctor's opinion that "it is possible" and "it is within the realm of medical possibility" too speculative to establish medical nexus); Goss v. Brown, 9 Vet. App. 109, 114 (1996) (using the words "could not rule out" was too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that a physician's statement that a service-connected disorder "may or may not" have prevented medical personnel from averting a Veteran's death was not sufficient). In Stegall v. West, 11 Vet. App. 268, 271 (1998), the Court held that a remand by the Board confers upon the Veteran or other claimant, as a matter of law, the right to compliance with the Board's remand order. Moreover, the Court further held that the Board itself errs when it fails to ensure compliance with the terms of its' remand. Id. As such, in light of this Stegall violation, the Board will remand the issue for an addendum VA medical opinion. This inadequacy of the February 2021 medical opinion has not escaped the attention of the Veteran's representative, who noted it in the April 2021 Informal Hearing Presentation. Additionally, after a review of the records the Board also notes the Veteran's May 1964 in-service treatment regarding left popliteal area. The examiner should also consider this service treatment record when evaluating whether the Veteran's current bilateral knee disability is at least as likely as not related to service. The matter is REMANDED for the following action: Obtain a medical opinion from an appropriate clinician as to the nature and etiology of the Veteran's current bilateral knee disability. Access to the claims file should be made available to the examiner for review. If the clinician determines that an examination of the Veteran is necessary, one should be scheduled. After a review of the claims file, the examiner should opine as to the following: a. Is it at least as likely as not that the Veteran's bilateral knee disability began in or is otherwise causally related to her active service? b. Is it at least as likely as not that the Veteran's bilateral knee disability was caused by a service-connected disability, to include weight-gain caused by inactivity due to PTSD? c. If not, is it at least as likely as not that the Veteran's bilateral knee disability is aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by a service-connected disability, to include weight-gain caused by PTSD? The Veteran served on active duty from February 1963 to May 1969 and had a period of ACDUTRA from July 10, 1976, to July 25, 1976. The examiner must address the following: (a) the June 1963 report of a fall and ongoing swelling and pain on right knee patella with subsequent normal x-ray; (b) the May 1964 report of left popliteal area pain; (c) the normal May 1965 knee exam; (d) the July 1976 report of tendonitis in both knees during period of ACDUTRA; and (e) the normal May 1969 discharge exam. The examiner is informed that the Federal Circuit has held that a medical opinion which relies on the absence of contemporaneous medical evidence and fails to consider whether lay statements present sufficient support of the etiology of the claimed disability, is inadequate. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. In providing the requested opinions, the examiner should consider the Veteran's reported symptoms in service and thereafter, including the nature, onset, progression and severity of the Veteran's reported symptoms. (Continued on the next page) If there is any medical reason to accept or reject the proposition that the Veteran's in-service physical training caused her current bilateral knee disability, this should be noted. Stated another way, do the Veteran's reports about her symptoms align with how bilateral knee disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Penn, 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.