Citation Nr: 21030968 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 15-21 148 DATE: May 20, 2021 REMANDED Entitlement to service connection for a right knee disability, to include as secondary to a service-connected left knee disability, is remanded. Entitlement to service connection for a low back disability with radiculopathy of the right lower extremity, to include as secondary to a service-connected left knee disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1988 to July 2008. His awards and decorations include a Combat Infantry Badge. These matters are on appeal from a September 2014 rating decision. In November 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the record. In April 2019, these matters were remanded by the Board for further development. Right knee and low back disabilities The Veteran contends that he has a right knee and low back disabilities are related to his service or secondary to his service-connected left knee disability. Regarding the Veteran's right knee disability, in its April 2019 remand the Board noted that on April 2015 VA contract examination patellofemoral syndrome of the knee and knee strain were diagnosed. August 2014 and April 2015 VA contract examiners opined that the Veteran's right knee disability was not related to service, but failed to address the Veteran's report of multiple jumps in service, the onset of the Veteran's right knee disability, and the continuity of right knee symptoms since service. In addition, the April 2015 VA contract examiner failed to consider a November 2014 opinion from a physician's assistant in support of the Veteran's claim. On remand, the examiner was asked to consider the Veteran's November 2018 hearing testimony about multiple jumps in service with combat gear and January 2014 and November 2014 statements from W.C., P.A. Pursuant to the Board's remand, in November 2019 the examiner stated that there was no evidence of a right knee disability and that the requested opinion was moot. In a July 2020 addendum the examiner reiterated that there was no evidence of a right knee disability. However, since the record indicates diagnoses of patellofemoral syndrome of the knee and knee strain this is factually inaccurate. Therefore, the Board must again remand the claim for an addendum as to whether the Veteran's right knee disability is related to his active service. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stegall v. West, 11 Vet. App. 268 (1998). Regarding the Veteran's low back disability, in the remand the Board noted that August 2014 and April 2015 VA examiners failed to take into consideration the Veteran's reports of continuity of low back symptoms during and since service or acknowledge a November 2014 private medical opinion in favor of the Veteran's claim. Pursuant to the Board's remand in a November 2019 VA medical opinion the examiner opined that the Veteran's low back disability was not related to his service based on the absence of evidence of a chronic low back disability or injury related to a parachute jump in the service treatment records and the Veteran's reported history of low back pain since 1991 which was inconsistent with the medical records and some of the Veteran's statements. The examiner also stated that there was no evidence of radiculopathy on examination. In a July 2020 addendum the examiner further opined that the Veteran's low back disability is not secondary to or aggravated beyond its natural progression by his service-connected disabilities, including left knee strain. The rationale, in part, was that there is "neither a consensus of evidence in medical literature or in the medical community that supports a causal or aggravating relationship between these conditions." However, the correct legal standard to apply is whether it is at least as likely as not that the Veteran's low back disability is (a) proximately due to or the result of the Veteran's service-connected disabilities, or (b) aggravated by his service-connected disabilities. Moreover, the examiner made a vague reference to medical literature, but failed to cite, much less explain, what medical literature was used to arrive at his conclusion. Therefore, the Board must again remand this claim for an addendum as to whether the Veteran's low back disability is related to his active service or service-connected left knee disability. Barr, supra; Stegall, supra. The matters are REMANDED for the following actions: Provide the claims file to an appropriate VA examiner, other than the November 2019 VA examiner, who should determine whether a new VA examination is warranted in order to provide the requested opinions. The claims folder should be made available to the examiner for review of pertinent documents. The report should reflect that such a review was conducted. The examiner should provide the following opinion(s): Right knee disability: a) Is it at least as likely as not (50 percent or more probability) that a right knee disability had its onset in or is etiologically-related to the Veteran's active duty service? b) If the answer to part (a) above is "no," is it at least as likely as not (50 percent probability or more) that the Veteran's right knee disability is (a) proximately due to or the result of the Veteran's service-connected disabilities, to include a left knee disability, or (b) aggravated (any incremental increase in the right knee disability beyond its normal progression) by his service-connected disabilities, to include a left knee disability? If it is determined that the right knee disability is related to a service-connected disability, to the extent possible, the examiner should indicate the approximate degree of disability or baseline before the onset of aggravation. Low back disability: a) Is it at least as likely as not (50 percent or more probability) that a low back disability had its onset in or is etiologically-related to the Veteran's active duty service? b) If the answer to part (a) above is "no," is it at least as likely as not (50 percent probability or more) that the Veteran's low back disability is (a) proximately due to or the result of the Veteran's service-connected disabilities, to include a left knee disability, or (b) aggravated (any incremental increase in the low back disability beyond its normal progression) by his service-connected disabilities, to include a left knee disability? If it is determined that the low back disability is related to a service-connected disability, to the extent possible, the examiner should indicate the approximate degree of disability or baseline before the onset of aggravation. The examiner is asked to consider and discuss as necessary the pertinent evidence of record to include the Veteran's lay statements, testimony, and complaints concerning the onset of his right knee and low back disabilities, including those made to medical providers; statements from W.C., P.A., dated January 2014 and November 2014; and November 2018 hearing testimony about his multiple jumps in service with combat gear. The Board, by this remand, makes no determination, expressed or implied, concerning the credibility of any statements on file. The report(s) should include the complete rationale for all opinions expressed. (Continued on the next page) The phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. If an opinion cannot be rendered without resorting to speculation, the examiner should explain why it would be speculative to respond. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Adams, 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.