Citation Nr: 21032262 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 18-04 455 DATE: May 26, 2021 REMANDED Entitlement to service connection for right knee strain with osteoarthritis (right knee condition), to include as secondary to service-connected left knee degenerative joint disease (left knee condition) and diabetes mellitus (diabetes), is remanded. Entitlement to a rating in excess of 10 percent for service-connected left knee condition, based on limited flexion, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from September 1973 to December 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision issued by a Department of Veterans Affairs (VA) regional office. This matter was previously remanded by the Board in May 2019. In February 2020, the Board granted a separate 10 percent rating for left knee instability, and continued the denial of the Veteran's claims of entitlement to service connection for a right knee condition and a rating in excess of 10 percent for service-connected left knee condition, based on limited flexion. The Veteran appealed the denied claims to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the parties entered into an amended Joint Motion for Partial Remand (JMPR). With respect to the Veteran's claim of entitlement to service connection for a right knee condition, the parties agreed that a remand of the claim was warranted as the August/December 2019 VA examiner applied the wrong standard in addressing aggravation and failed to provide an adequate rationale for their negative nexus opinion. Regarding the Veteran's claim of entitlement to a rating in excess of 10 percent for his service-connected left knee condition, the parties agreed that a remand of the claim was warranted as the Board failed to adequately address whether the August 2019 VA examination was adequate or whether it complied with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016). In January 2021, the Court granted the amended JMPR, and remanded the appealed claims for further development. As an initial matter, the Board notes that VA is required to consider all theories of entitlement to VA benefits, including via secondary service connection, that are either raised by the claimant or reasonably raised by the record. See Schroder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000); Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008). Here, the Veteran has asserted that his right knee condition is secondary to his service-connected left knee condition. See March 2016 Correspondence; December 2016 Notice of Disagreement (NOD). Additionally, the August 2019 VA examiner indicated that the Veteran's right knee condition may be related to his service-connected diabetes. See August 2019 VA Medical Opinion Disability Benefits Questionnaire (DBQ). Accordingly, the Board finds it appropriate to recharacterize the Veteran's claim as one of entitlement to service connection for a right knee condition, to include as secondary to service-connected left knee condition and diabetes. 1. Entitlement to service connection for a right knee condition, to include as secondary to service-connected left knee condition and diabetes, is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, and in light of the January 2021 JMPR, the Board finds that a remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to conduct additional development. Specifically, as discussed in the January 2021 JMPR, a remand is necessary to obtain an adequate opinion regarding the nature and etiology of the Veteran's right knee condition. In August 2019, the Veteran was afforded a VA examination in which the examiner opined that the Veteran's right knee condition was less likely than not secondary to his service-connected left knee condition. In support of this opinion, the examiner noted that the Veteran's obesity and diabetes are both associated with higher prevalence of knee osteoarthritis, and that his post-service occupation as a U.S. Postal Service letter carrier would have placed chronic, daily physical stressors for years across both knees. This rationale was repeated in a December 2019 addendum opinion. See August 2019 VA Knee and Lower Leg Conditions DBQ; August 2019 VA Medical Opinion DBQ; December 2019 VA Medical Opinion DBQ. However, the examiner did not discuss what impact, if any, the Veteran's service-connected left knee condition would have on the distribution of the "chronic, daily physical stressors" across the knees. Additionally, though the examiner noted that diabetes is associated with a higher prevalence of knee osteoarthritis, they did not opine as to whether the Veteran's right knee condition was caused or aggravated by his service-connected diabetes. See id. Therefore, the Board cannot find the August 2019 or December 2019 opinions to be adequate to the extent they ignore such. Moreover, with respect to aggravation, the August 2019 examiner stated that the Veteran's right knee condition was not a pre-existing condition, and, therefore, aggravation was moot. In the December 2019 addendum opinion, the examiner again stated that the Veteran's right knee condition was not a pre-existing condition, and, therefore, aggravation was moot. See id. However, service connection on a secondary basis is warranted when a current disability is either proximately caused by or proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). As the examiner applied the wrong standard, and effectively did not address service connection based on aggravation, the August 2019 and December 2019 opinions cannot be considered adequate to the extent they ignore such. See El-Amin v. Shinseki, 21 Vet. App. 303, 312 (2007). For these reasons, the Board finds the August 2019 and December 2019 VA opinions to be inadequate for adjudication purposes, to the extent outlined above. As such, a remand is necessary to obtain an adequate VA opinion regarding the nature and etiology of the Veteran's claimed right knee condition. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to a rating in excess of 10 percent for service-connected left knee condition, based on limited flexion, is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, and in light of the January 2021 JMPR, the Board finds that a remand is necessary to allow the AOJ to conduct additional development. Specifically, a remand is necessary to afford the Veteran with an adequate examination regarding the severity of his service-connected left knee condition. In April 2020, the Veteran was afforded a VA examination in which he reported that he experienced reduced range of motion (ROM) in his left knee due to pain and difficulty climbing stairs, standing, walking, and bending. He also reported that overuse exacerbated the condition, while medication alleviated the condition. The examiner documented an abnormal initial ROM in the left knee with flexion to 95 degrees and extension to zero degrees. The examiner opined that following repeated use over time, pain, fatigue, and weakness would result in a reduced ROM of flexion to 70 degrees and extension to zero degrees. As the Veteran denied experiencing flare-ups, no opinion regarding the functional impacts of such was provided. See April 2020 VA Knee and Lower Leg Conditions DBQ. However, in documenting the left knee's initial ROM, the examiner stated that no pain was noted on examination. The Board finds this to be internally inconsistent with the examiner's notations of pain with weight bearing and that ROM is limited by pain, as well as the Veteran's report that he experiences reduced ROM due to his left knee pain. See id. Additionally, the Veteran has reported that the severity of his left knee condition is alleviated through medication. See id. It is unclear whether the ameliorative effects of such medication, if any, were discounted in determining the Veteran's initial ROM or the functional impacts of repeated use over time. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Further, in light of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017, a remand is necessary to allow the AOJ to obtain a retrospective opinion regarding the severity of the Veteran's service-connected left knee condition. In Correia, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia, 28 Vet. App. at 168. Here, neither the July 2016 nor the August 2019 examiners specified whether active and passive motion were tested, or whether the results provided were weight-bearing or non-weight-bearing. Indeed, the August 2019 examiner stated that weight-bearing measurement could not be provided in an equitable manner, and that there was no peer-reviewed method to evaluate under non-weight-bearing, rendering it unclear as to what, exactly, the examiner's documented ROM findings represent. See July 2016 VA Knee and Lower Leg Conditions DBQ; August 2019 VA Knee and Lower Leg Conditions DBQ. Additionally, in Sharp, the Court held that, pursuant to VA regulations and the VA Clinician's Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their severity, frequency, and duration, name the precipitating and alleviating factors, and estimate, per the veteran, to what extent, if any, flare-ups and repetitive use over time affect functional loss. Sharp, 29 Vet. App. at 26. Further, VA examiners are expected to offer opinions on functional loss that would occur during flare-ups and repetitive use over time based on estimates derived from relevant sources, including the Veteran's lay statements. Id. at 34. In other words, stating that the examination was not conducted during a flare-up or following repetitive use over time as the sole rationale for not addressing the functional impacts of such is not sufficient. Here, the July 2016 examiner noted that the Veteran reported experiencing flare-ups of pain weekly, rated as up to 10 out of 10, which reduced to 2 out of 10 approximately one hour following treatment with hydrocodone. However, the examiner declined to address the functional impacts of repeated use over time or during flare-ups, stating that there was no basis for making such a determination without directly observing function under these circumstances. See July 2016 VA Knee and Lower Leg Conditions DBQ. Similarly, the August 2019 examiner noted that the Veteran reported that his knee pain was worse towards the latter part of the day, and that he had to take hydrocodone approximately twice per week to alleviate the pain. However, the examiner concluded that pain did not limit function ability with repeated use over time and during flare-ups. See August 2019 VA Knee and Lower Leg Conditions DBQ. As the July 2016 and August 2019 examinations did not fully satisfy the requirements of 38 C.F.R. § 4.59, Correia, or Sharp, the Board finds that a remand is necessary to obtain a retrospective opinion regarding the severity of his service-connected left knee condition. Accordingly, the matters are REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the electronic claims file any outstanding pertinent medical records, whether VA or private, including records relating to treatment at Kansas City VAMC from December 2020 to current, and at the Fayetteville, Arkansas VAMC from December 2019 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. After completing the development above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician, other than the clinician that conducted the August 2019 examination, to ascertain the current nature and severity of his service-connected left knee condition, as well as the nature and etiology of his claimed right knee condition. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) Obtain the Veteran's detailed lay history, including employment and the onset and progression of symptomatology. (b.) Test and document the range of motion (ROM) for the Veteran's bilateral knees in active motion, passive motion, on weight-bearing, and non-weight-bearing, on both an initial and after repetitive use basis. FOR EACH ROM, THE EXAMINER IS ASKED TO EXPLICITLY IDENTIFY THE DEGREE IN WHICH PAIN IS FIRST EVIDENCED BY THE VETERAN'S VISIBLE BEHAVIOR. (c.) Identify the nature and severity of all current manifestations of the Veteran's service-connected left knee condition. The extent of any weakened movement, excess fatigability, and incoordination should be described. Any additional impairment due to such should be assessed in terms of the degree of additional ROM loss. Additional limitation following repetitive use over time, if any, must also be noted. (d.) If the Veteran describes flare-ups, after documenting the frequency, severity, and duration thereof, express an opinion as to whether there would be additional functional impairment during such flare-ups. The examiner should assess such impairment in terms of the degree of additional ROM loss and provide an explanation as to how such was determined. (e.) In assessing the functional impacts of repeated use over time and flare-ups, the examiner is asked to: i. Clearly indicate whether any medications the Veteran uses affects the severity of his knee condition. If so, identify each medication and clearly explain how such medication affects such condition. ii. If any such medication is productive of ameliorative affects, clearly identify such effects and opine as to the severity of the knee condition absent such medication. Such severity should be assessed in terms of limitation to ROM, if possible. (f.) For each diagnosed right knee condition, provide the following opinions: i. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition is caused by a service-connected condition, to include the Veteran's service-connected left knee condition and diabetes. ii. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition underwent an incremental increase (aggravated), regardless of permanence, due to a service-connected condition, to include the Veteran's service-connected left knee condition and diabetes. iii. In formulating the requested opinions, the examiner is instructed to consider and specifically address the August 2019 examiner's etiological opinion, including the notation that diabetes is associated with higher prevalence of knee osteoarthritis. (g.) Provide a RETROSPECTIVE OPINION, utilizing the Veteran's medical records and lay history, and opine as to the severity of the Veteran's service-connected left knee conditions from March 31, 2016, to current. Any impairment, and any additional impairment due to repetitive use over time or flare-ups, should be assessed in terms of limitation to ROM, if possible, and the examiner should state whether such limitation is mild, moderate, or severe in nature. In rendering the requested opinions, the examiner is asked to: i. Clearly indicate whether any medications the Veteran uses affects the severity of his knee condition. If so, identify each medication and clearly explain how such medication affects such condition. ii. If any such medication is productive of ameliorative affects, clearly identify such effects and opine as to the severity of the knee condition absent such medication. Such severity should be assessed in terms of limitation to ROM, if possible. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that 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 the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. 4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.