Citation Nr: 21028995 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 11-03 158 DATE: May 12, 2021 REMANDED Entitlement to service connection for left knee disability, to include as secondary to service-connected left foot disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 2001 to May 2003 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matter on in May 2016, May 2017, December 2017, and most recently in August 2019. Unfortunately, as explained below, there has not been substantial compliance with the Board's prior remand directives. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for left knee disability, to include as secondary to service-connected left foot disability is remanded. The Veteran contends that his left knee disability manifested as secondary to his service-connected left foot disability (i.e. left foot status-post fusion, tarsal coalition with osteoarthritis of the posterior facet of the joint). See VA Form 21-4138 (August 2010). The Veteran noted that his left foot affects his left knee, as he overcompensates for the left knee disability by artificially placing his left foot in positions that relieve pain, fatigue, and weakness, which he believes resulted in his left knee disorder. A review of the Veteran's VA treatment records discloses that, in April 2009, the Veteran presented with complaints of increasing left knee pain; a September 2010 note shows progressive left knee pain; a February 2012 note shows complaints of left knee pain with clicking; a February 2012 note shows that the Veteran was followed by above a private medical provider in the community for left knee, ankle, and foot pain symptoms. A March 2013 VA treatment note reflects a history of left knee pain for more than 10 years, which he attributed to left ankle fusion done in military years earlier. An August 26, 2013 VA treatment note indicated the presence of chronic left knee pain that may be a result of the ankle. The record shows various diagnoses: arthralgia was assessed in an April 2013 VA treatment record; degenerative joint disease (DJD) was assessed in a July 2015 and June 2017 VA treatment notes; and history of DJD on a March 2018 VA examination. However, the most recent VA knee examination, conducted in December 2019, reflects that the Veteran has a diagnosis of left knee strain and no diagnosis for arthritis based on review of February 2018 x ray study. To ensure that VA has met its duty to assist, the Board finds that remand is necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The relevant law provides that service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. While VA has obtained several VA medical opinions (VAMO), none are adequate. More specifically, the most recent VAMO dated in December 2019 provided that the Veteran's left knee disability is less likely than not due to or the result of the Veteran's service connected condition. The rationale was that (1) the Veteran joined the army in 2001 and separated in 2003; (2) the Veteran did not report a medical condition affecting left knee during active service or within 1 year of separation; (3) the Veteran first reported left knee pain in 2008; and (4) the Veteran reports symptoms started around 2005/2006. Therefore, the opinion concludes that left knee strain is less likely than not (less than 50 percent probability) proximately due to or the result of the veteran's service connected left foot disability. Here, while the conclusion is a clear and the supporting data, it entirely lacks a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22Vet. App.295, 301 (2008). Indeed, it does not explain why the Veteran's presentation of left knee pain, to include onset and progression, diagnosed as strain, is less likely than not caused by or aggravated by service-connected left foot/ankle disability. Also, as to the question of aggravation, the VAMO's stated rationale ignored competent, credible reports from the Veteran of worsening symptom, as documented in the VA treatment records, dismissed the favorable report by "the Virginia physician indicating a probable relationship between the left foot and left knee," and relied on the absence of "medical literature" to support the negative conclusion. An opinion is inadequate when it does not reflect a meaningful discussion of the Veteran's lay statements. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016). Further, it is inadequate when it is not based on an accurate factual premise with consideration of the Veteran's prior medical history. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Additionally, the opinion relied on the absence medical literature to support causation or aggravation without any discussion of facts specific to the Veteran, which renders it inadequate for adjudicative purposes. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018). The Board finds that the December 2019 VAMO is inadequate and, therefore, remand is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when the Secretary undertakes to provide a veteran with a VA medical examination or obtain an opinion, he must ensure that the examination or opinion provided is adequate). Finally, a review of the VA treatment records disclosed that the Veteran obtained non-VA medical care for his left knee and foot/ankle from Dr. Alberny. See CAPRI (February 2012). VA's duty to assist include making reasonable efforts to obtain record not in the custody of a Federal department or agency. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(1). Therefore, remand is necessary to afford the Veteran an opportunity to authorize release of those records to VA. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from January 2021 to the Present. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms involving his left knee and foot/ankle to include those of Dr. Alberny. Make two requests for those authorized records from all identified sources unless it is clear after the first request that a second request would be futile. 3. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's left knee disability. RE-EXAMINATION IS NOT REQUIRED UNLESS DEEMED NECESSARY BY THE CLINICIAN PROVIDING THE MEDICAL OPINION. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with any left knee disability. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician must opine on: Whether any left knee disability, to include diagnosed strain, is at least as likely as not (1) proximately due to service-connected left foot/ankle disability, or (2) aggravated beyond its natural progression by service-connected left foot/ankle disability. Provide a rationale that deals with causation and aggravation as independent concepts. If aggravation is found, the clinician should address the baseline manifestations of the Veteran's left knee disability found prior to aggravation; and the increased manifestations which, in the clinician's opinion, are proximately due to the service-connected disability. Explain. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): An adequate medical opinion may not be predicated solely on the absence of literature supporting causation or aggravation without discussing those facts specific to this Veteran. NOTE (3): The clinician is not required to accept the Veteran's theory that his left foot/ankle caused or aggravated his left knee disability if this is incongruous with the record or accepted medical principles; however, the clinician is required to fully explain why he or she disagrees with the Veteran's theory of causation or rejects any history provided. 4. Ensure that all VA medical opinion obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.A. Macek 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.