Citation Nr: 21040137 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 11-06 669 DATE: July 2, 2021 REMANDED 1The service connection claim for right knee retropatellar pain syndrome (right knee disability), as secondary to a service-connected left knee disability, is remanded. The service connection claim for hiatal hernia, also diagnosed as gastroesophageal reflux disease (GERD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1979 to October 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In April 2015, the Veteran and his spouse, V.H., testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In July 2015, the Board remanded the matter to the RO for further evidentiary development. In November 2016, the Board denied the claim for the above-mentioned issues on appeal. Thereafter, the Veteran filed an appeal of the November 2016 Board decision with the United States Court of Appeals for Veterans Claims (Court). In a March 2018 memorandum decision, the Court vacated and remanded the issues back to the Board for additional developments, consistent with the findings in the March 2018 Memorandum Decision. In February 2019 and February 2021, the Board remanded the issues to the RO for further evidentiary development. However, the Board regrets additional delay, as the developments the AOJ undertook, since the last February 2021 Board remand, are still not in substantial compliance with prior remand directives, as well as the March 2018 Court Memorandum Decision. Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the Veteran or other claimant, as a matter of law, the right to substantial compliance with the remand order). Thus, a remand is required for further developments are mandatory for purposes of rendering a fully informed decision on all the issue on appeal. 1. Right Knee Disability, Secondary to Service-Connected Left Knee Disability The Veteran asserts that he frequently overcompensates his weight and his balance to his right knee due to his unstable left knee. In February 2021, the Board remanded the service connection claim for the right knee disability to obtain an addendum opinion. In doing so, the Board instructed an examiner to opine as to the likelihood that the Veteran's right knee disability is aggravated by his service-connected left knee disability. Thereafter, the AOJ obtained a new VA opinion on the Veteran's right knee disability. In this March 2021 VA opinion, a VA examiner opined, in part, that "it is less likely than not the Veteran's right knee "conditions have been aggravated beyond the natural course due to any cause, including left knee conditions." As the rationale for this opinion, the VA examiner explained that a "condition of one joint does not [aggravate] a condition of the contralateral joint." Additionally, and although the VA examiner vaguely and broadly reasoned that the Veteran's "claim is not supported by the medical evidence and the pathophysiology of the conditions diagnosed", he did not address and/or consider the Veteran's assertions that his right knee worsened because it overcompensated for the service-connected left knee disability. Thus, as the VA examiner's opinion on aggravation does not contemplate all of the evidence, to include the Veteran's statements about the worsening of his right knee disability, a remand is required for an addendum opinion on the aggravation of the Veteran's right knee disability. 2. GERD In the last remand, in February 2021, the Board remanded the service connection claim for GERD, for the RO to obtain an addendum opinion. The Board instructed, among other directives, that the VA examiner should specifically answer the questions, "is the etiology of the Veteran's GERD (1) inconclusive, (2) partially understood, or (3) fully understood?": and "is the pathophysiology of the Veteran's GERD (1) inconclusive, (2) partially understood, or (3) fully understood?" Unfortunately, the Board's request was improper as the Veteran's claim for service connection on the basis of his service in Southwest Asia, and pursuant to 38 C.F.R. § 3.317 is not for application in this case as such theory of entitlement was deemed abandoned by the Court in the March 2018 Memorandum Decision. The Board regrets the error. Despite the error, the addendum opinion that the AOJ subsequently obtained for the GERD disability is not substantially in compliance with prior Board remand directives, including the February 2021 remand, and pertinently, the March 2018 Court Memorandum Decision. In a March 2021 VA opinion, a VA examiner opined that the "claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." However, by providing a rationale for this opinion, the VA examiner did not provide a clear, unambiguous response to the questions presented in the February 2021 remand directives for hiatal hernia/GERD, and he did not consider the Veteran's lay statements about ongoing gastrointestinal symptoms from the period since his separation from service, in 1997, up to the period prior to his diagnosis of GERD, in 2004. Further, as the Veteran indicated in his June 2021 appellate brief, he complained of stomach pain and diarrhea in 1989 and 1995, while on active duty, for which he received treatment. However, the VA examiner did not provide a clear explanation as to why these in-service symptoms were not related to his hiatal hernia or GERD, although he vaguely and broadly stated that "[all] G.I. references while in service were associated with unrelated conditions, as documented previously on [medical opinions]", thereby citing and adopting the findings of prior medical opinions that the Board and Court determined to be inadequate. Thus, a remand is required for compliance with the February 2021 Board remand directives (which adopts prior remand directives and the March 2018 CAVC Memorandum Decision), and specifically for obtaining a clear, adequate supplemental opinion on the Veteran's hiatal hernia/GERD. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the VA examiner who rendered the March 2021 VA opinion on the right knee disability, for a clarification of the opinion on the aggravation of the Veteran's right knee disability. If this VA examiner is unavailable, obtain the addendum opinion from another physician (VA examiner), and ask the VA examiner to provide a clarification of the March 2021 VA opinion. The VA examiner must review the claims file and must note that review in the report. A copy of this REMAND must be made available to the VA examiner. The VA examiner must specifically respond to the following questions, and/or undertake the following developments: a. opine whether it is at least as likely as not (more than 50 percent probability) that the Veteran's right knee disability is aggravated by his service-connected left knee disability. "Aggravation" means an increase in severity of the disorder beyond any medically established baseline. b. In rendering this opinion, consider all lay statements from the Veteran's about the symptoms and manifestations of his right knee disability. With a clear rationale, the VA examiner must specifically address, among other pertinent, relevant evidence, the Veteran's assertion that his right knee is aggravated by his service-connected left knee because his right knee worsened from overcompensating for the left knee disability. c. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. 2. Also, obtain a supplemental opinion on the Veteran's hiatal hernia/GERD from a VA examiner who has not yet evaluated the Veteran's condition. The VA examiner must review the claims file and must note that review in the report. A copy of this REMAND must be made available to the VA examiner. The VA examiner must specifically respond to the following questions, and/or undertake the following inquiries: a. Opine whether it is at least as likely as not (more than 50 percent probability) that the Veteran's hiatal hernia/GERD was incurred in service; is the result of an in-service injury, event, illness; and/or is otherwise related to his active service. b. In rendering an opinion, the VA examiner must consider the Veteran's statements about onset and symptoms, as well as any other statements from other witnesses about the Veteran's hiatal hernia/GERD. With a clear rationale, the VA examiner must specifically address, among other pertinent, relevant evidence, the Veteran's statements that he manifested ongoing gastrointestinal symptoms since the 1997 date of his separation from service, up to the time he was diagnosed with GERD, in 2004. c. Additionally, the VA examiner must explain, with a clear rationale, whether the Veteran's in-service complaints and treatment for stomach pain and diarrhea (gastroenteritis) in 1989 and 1995, are correlated, and/or a contributing cause of his hiatal hernia/GERD. d. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V-N. Pratt 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.