Citation Nr: 21039731 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-35 920A DATE: July 1, 2021 REMANDED Service connection for a total left knee replacement (left knee disability), to include as secondary to the service-connected right knee disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1967 to October 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision. This matter was before the Board in August 2019 when it was remanded for additional development. Service connection for a total left knee replacement (left knee disability), to include as secondary to the service-connected right knee disability, is remanded. The Veteran asserts service connection for a left knee disability is warranted to include as secondary to his service-connected right knee disability. Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Aggravation of a nonservice-connected disease or injury by a service-connected disability may also be service-connected. 38 C.F.R. § 3.310 (b). The Court held in the case of Ward v. Wilkie, 31 Vet. App. 233 (2019), that aggravation pursuant to 38 C.F.R. § 3.310 does not require a permanent worsening of the condition. Rather, the Court explained that "aggravation" is any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity hat is above the degree of disability existing before the increase, regardless of its permanence. Id. Since the Board's August 2019 remand, there are two additional VA opinions of record. In January 2020, a VA examiner opined for direct service connection, the Veteran's left knee condition was acute, there is no evidence of chronicity of care, and concluded a nexus had not been established. No opinion was provided for secondary service connection. In November 2020, a VA examiner opined for direct service connection that a nexus is not established because the Veteran had one episode of mild chondromalacia patella during active service with no further complaint, diagnosis, or treatment noted during service or within a year of separation from active service. They also state the separation exam is silent for left knee concerns. For causation, the examiner found "no clear evidence" an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, and "one joint's disease does not 'spread' to another or cause damage to it." They provide the same rationale for aggravation. The Board finds the VA examiners' conclusions to be inadequate. For direct service connection, both opinions fail for the same reasons. The examiners did not consider or comment on the lay evidence of record regarding treatment, diagnosis, and chronicity of symptoms. For example, in a November 2011 statement, the Veteran states when he received treatment for his right knee during active service, he was told his left knee would eventually be affected. See also February 2014 Correspondence. Regarding chronicity of symptoms, there is evidence of continuing symptoms of the left knee after separating from service. In October 1974, an orthopedic reevaluation report notes, "the injury aspect of his knees still aches and pains quite frequently, but he doesn't have anymore [sic] locking." Furthermore, a February 2020 examination report notes, "[the] Veteran states his knee continued to de-compensate and he eventually needed left total knee replacement in 2012." Additionally, while the November 2020 VA examiner characterized the Veteran's in-service left knee condition as "mild," the Board observes the November 1968 service medical record characterizes the Veteran's condition as considerable by noting "considerable subpatellar crepitus" of the left knee. Radiographic imaging from the same month revealed a diagnosis of left knee chondromalacia. A remand is required for adequate opinions regarding secondary service connection. The January 2020 examiner provided no opinion for secondary service connection. Furthermore, the November 2020 examiner's rationale for causation has no probative value because it is not the Veteran's right knee condition could have spread to his left knee but whether his right knee condition caused or aggravates his left knee condition as a result of issues such as constant and chronic biomechanical compensation, adaptation, altered gait, or weight-shifting. Indeed, the November 2011 VA knee examination report notes the Veteran reported pain in his right knee caused weightbearing onto the left knee in addition to gait issues. Finally, the November 2020 examiner provides the same rationale for both causation and aggravation. The Court has held causation and aggravation are independent concepts and should have separate findings and rationales. See Atencio v. O'Rourke, 30 Vet. App. 74 (2018). As such, on remand, the VA examiner must provide separate findings and rationales relating to causation and aggravation. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and any outstanding private medical records identified by the Veteran as pertinent to his claim. 2. Schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of his left knee disability. The claims file should be made available to the examiner. All indicated tests should be conducted and all findings reported in detail. The examiner should elicit from the Veteran a complete history of his symptomatology, including any in-service symptomatology and treatment, as well as his complete post-service history of symptoms and treatment. Following a review of the record, to include the Veteran's lay statements as well as any other evidence that may be added to the record concerning onset and recurrence of symptomatology, the examiner should address the following: (a.) Whether it is at least as likely as not (50 percent probability or greater) the Veteran's left knee disability began in service or was caused by any incident of service to include the November 1968 service medical record noting considerable subpatellar crepitus of the left knee in addition to a diagnosis of left knee chondromalacia. (b.) Whether it is at least as likely as not (50 percent probability or greater) the Veteran's left knee condition (i) was caused (in whole or in part) or (ii) aggravated (any incremental increase in disability or any additional impairment of earning capacity regardless of its permanence) by the Veteran's service-connected right knee condition as a result of issues such as constant and chronic biomechanical compensation, adaptation, altered gait, or weight-shifting. The examiner must provide separate opinions and rationales for secondary cause and secondary aggravation. Atencio, supra. In developing their opinion, the examiner should consider the November 2011 VA knee examination report noting the Veteran reported pain in his right knee caused by weightbearing onto the left knee in addition to gait issues. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements. The opinions must reflect consideration of the Veteran's reports as to his history and symptomatology. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buck Denton 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.