Citation Nr: 21030040 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 19-12 987 DATE: May 17, 2021 REMANDED Entitlement to service connection for left knee disability, as secondary to service-connected right knee disability, is remanded. Entitlement to a temporary total rating based upon the need for convalescence following surgery for left knee disability is remanded. REASONS FOR REMAND The Veteran had active service from May 1967 to May 1969 and from May 1972 to July 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision. In January 2020, the Board denied the claims of service connection for left knee disability and for a temporary total rating based upon the need for convalescence following surgery for left knee disability. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (CAVC or "Court"). In September 2020, the Court set aside the Board's January 2020 decision and remanded to the Board the issues on appeal for readjudication in compliance with directives specified in a September 2020 Joint Motion (JMR) filed by counsel for the Veteran and VA. In accordance with the September 2020 JMR, although the Board regrets the additional delay, a remand is necessary to ensure due process and proper development regarding the Veteran's claims. Specifically, the Board finds a remand is necessary for the above claims to obtain an adequate opinion to determine whether the Veteran's claimed left knee disability was aggravated by his service-connected right knee disability. A 2018 VA examiner's opinion, upon which the 2020 Board denial was based, only included an opinion on causation, but did not provide an answer as to whether the Veteran's service-connected right knee disability aggravated his claimed left knee disability beyond its natural progression. Aggravation should have been addressed separately and directly by the examiner and must abide by the Court's holding that aggravation does not require permanent worsening. Instead, aggravation includes any additional impairment in earning capacity or incremental increase in disability resulting from an already service-connected condition, regardless of its permanence. Ward v. Wilkie, 31 Vet. App. 233 (2019). As such, remand is warranted for a new medical opinion that addresses aggravation. In addition, as entitlement to a temporary total rating is inextricably intertwined with the service connection claim, remand is also warranted for the Board to readjudicate that issue. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Lastly, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the North Florida/South Georgia Veterans Health System and are dated to November 2019. Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. The matters are REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records from the North Florida/South Georgia Veterans Health System for the period since November 2019; and all such relevant records from any other sufficiently identified VA facility 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, request an addendum opinion from an appropriate clinician as to whether the Veteran's claimed left knee disability is aggravated by service-connected disability. The clinician must note review of the complete claims file, including this remand. No additional examination of the Veteran is necessary, unless the clinician determines otherwise. The clinician must opine as to the following, with a full supporting rationale. Is it at least as likely as not (at least a 50 percent probability) that the Veteran's currently diagnosed left knee disability or symptomatology (i.e., any left knee disability experienced since approximately April 2018) is aggravated by any of his service-connected disabilities (to include his right knee disability)? The clinician should specifically cite to any evidence that supports the opinions. The clinician is advised that a "permanent" worsening or increase in severity of the currently diagnosed left knee disability is NOT required to demonstrate "aggravation." Rather, aggravation is shown if there is any incremental increase in disability, meaning any additional impairment of earning capacity above the degree of disability existing before the increase, in a nonservice-connected disability resulting from a service-connected disability, regardless of its permanence. Rationale must be provided for opinions proffered. If the clinician determines a requested opinion is not possible without resort to mere speculation, then the clinician must explain why. Brian J. Elwood Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.