Citation Nr: 21041253 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 12-14 596 DATE: July 8, 2021 REMANDED Entitlement to service connection for a left knee disorder, to include as secondary to service-connected bilateral pes planus, is remanded. Entitlement to service connection for a right knee disorder, to include as secondary to a left knee disorder or bilateral pes planus, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1960 to April 1966 with additional service in the reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in January 2017. A transcript of the hearing is of record. The Board remanded this matter in June 2015, March 2017, and December 2017 for additional development. The matter is now returned to the Board for further appellate review. This appeal is advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c) (2019); 38 U.S.C. § 7107 (a)(2) (2012). The Veteran is claiming service connection for both left and right knee disabilities. The Veteran has advanced several arguments regarding his knees and why he believes the current knee disabilities are related to service. He argues that he injured his left knee in service and that his current left knee disability is related to this injury. He argues that his right knee disability is caused or aggravated by gait changes caused by either his left knee or his pes planus disabilities. He also argues that his knee disabilities are caused by wearing boots in service that were made more rigid by the use of glue. With respect to the Veteran's secondary service connection arguments, VA provided the Veteran an examination in April 2017. The examiner opined that the Veteran's left and right knee disorders were less likely than not caused by his pes planus, in part, because the Veteran's left and right knee conditions predate the documented onset of the Veteran's foot conditions. After the March 2017 Board remand, however, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the case of Frost v. Shulkin. 29 Vet. App. 131 (2017). The Court held that there was not a temporal requirement inherent in 38 C.F.R. § 3.310(a) for claims for service connection on a secondary basis. 29 Vet. App. 131, 134 (2017). The Court explained that "for a veteran to be service connected on a secondary basis under a causation theory, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred." Id. Because the April 2017 examiner provided a negative etiology opinion based on the argument that the knee conditions predate the foot conditions, a new opinion on secondary service connection is warranted. With respect to direct service connection, the Veteran contends his left knee condition is a result of twisting his knee during a training exercise while on active duty. Moreover, in a November 2014 correspondence, the Veteran asserted that he used glue to create a rigid structure for his boots so that he would pass uniform inspections, and that wearing the rigid boots caused his left knee condition. An examiner has not opined whether such modifications to a boot caused the Veteran's left knee condition. Accordingly, a remand is necessary to obtain an opinion addressing this contention. Moreover, in the December 2017 remand, the Board requested an opinion on whether the current left knee disability is related to the twisting injury in service described by the Veteran. The remand directives instructed the examiner to address, among other items of evidence, the January 1980 pathology consultation where the Veteran was diagnosed with severe patellofemoral degenerative joint disease and it was noted that the degenerative changes were consistent with an old injury. The February 2018 VA examiner noted that the pathology report cannot state definitively (with absolute certainty) that the degeneration is from an old injury or when an old injury occurred. The appropriate legal standard in VA disability compensation cases is "at least as likely as not." This standard applies to every material fact. Therefore, the Board finds the February 2018 VA examiner applied too stringent of a legal standard and a new direct service connection opinion should be obtained on remand. The record currently reflects that the Veteran's right knee disability is secondary to his left knee disability. The right knee disability, however, is not currently service connected. As noted above, the Veteran contends that he used glue to create a rigid structure for his boots so that he would pass uniform inspections, but that wearing the rigid boots caused his right knee condition. An examiner has not opined whether such modifications caused the Veteran's right knee condition. Accordingly, a remand is necessary to obtain an opinion addressing this contention. The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the etiology of the Veteran's left knee disorder. Schedule the Veteran for an examination only if deemed necessary by the clinician selected to provide the opinion. The examiner must opine whether any left knee condition diagnosed is at least as likely as not related to an in-service injury, event, or disease, to include the twisting injury described by the Veteran and using glue to make his boots rigid. The examiner must address the significance of the private treatment records from November 1978 onwards concerning the onset of symptoms relating to his left knee, including the January 1980 pathology consultation noting degenerative changes to his left knee consistent with an old injury. If the Veteran's current left knee disorder is not found to be at least as likely as not directly related to military service, then the examiner must also opine whether any left knee disorder is at least as likely as not (1) proximately due to the Veteran's service-connected pes planus, or (2) aggravated beyond its natural progression by his service-connected pes planus. 2. Obtain an addendum opinion regarding the etiology of the Veteran's right knee disorder. Schedule the Veteran for an examination only if deemed necessary by the clinician selected to provide the opinion. The examiner must opine whether any right knee condition diagnosed is at least as likely as not related to an in-service injury, event, or disease, to include using glue to make his boots rigid, which the Veteran contends injured his right knee. If the Veteran's current right knee disorder is not found to be at least as likely as not directly related to military service, then the examiner must also opine whether any right knee disorder is at least as likely as not (1) proximately due to the Veteran's service-connected pes planus, or (2) aggravated beyond its natural progression by his service-connected pes planus. Aggravation and causation are distinct theories and must be addressed separately and independently of each other. The examiner is advised that if a negative opinion is provided for the secondary service connection claims, the rationale provided must go beyond noting that left and right knee conditions were diagnosed before pes planus was diagnosed as there is no requirement in VA regulation that the primary disability must be diagnosed prior to the secondary disability in order to establish entitlement to service connection on a secondary basis. The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, 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.