Citation Nr: 21042388 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-46 986 DATE: July 12, 2021 REMANDED Service connection for a left knee disability. Service connection for flat feet. The petition to reopen the previously denied claim for service connection for left clubfoot also claimed as left leg condition. The petition to reopen the previously denied claim for service connection for a left ankle condition. The petition to reopen the previously denied claim for service connection for a left hip condition. REASONS FOR REMAND The Veteran served on active duty from April 1981 to August 1982. The case is on appeal from January 2017 (left clubfoot/left leg claim) and June 2017 (left knee and flat feet claims) rating decisions and an August 2017 administrative decision (left ankle and left hip claims). In April 2019, the Board denied service connection for a left knee disability and flat feet and denied reopening the left clubfoot, left ankle and left hip claims. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 Memorandum Decision, the Court set aside the April 2019 Board decision as to all claims on appeal and remanded the claims to the Board. The Court stated, with the April 2019 decision, that the Board "decided the appeal sooner than 90 days after mailing the § 20.1304(a) notice letter, without waiting for the [V]eteran to submit the supporting argument that it knew was forthcoming. In so doing, the Board violated [the Veteran's] fair process right to contribute to and meaningfully participate in his appeal," with citation made to Bryant v. Wilkie, 33 Vet. App. 43 (2020). Following the November 2020 Memorandum Decision, a February 2021 letter was sent by the Board to the Veteran and his representative informing them, in part, that this case had been received by the Board and that there was a 90 day period to submit additional argument or evidence. In March 2021, the Veteran's representative requested that the Board hold the Veteran's case for the full 90 day period. The Board notes that this period has now expired. In addition, the Veteran's representative submitted additional argument addressing all claims on appeal in June 2021. In review, the Board finds that the fair process concerns identified by the November 2020 Memorandum Decision have been resolved at this point of the Veteran's appeal. 1. Service connection for a left knee disability. On further consideration, the Board finds that remand is warranted to afford the Veteran a VA examination and obtain a VA opinion. The Veteran was not previously afforded a VA examination as part of his left knee disability claim. The Veteran was afforded a VA examination in February 2011 as part of a separate left leg claim. See January 2011 Exam Request Report (noting the claimed condition as "left leg condition"). The Board acknowledges that the Veteran's representative has, essentially, contended that this examination was inadequate as to the left knee disability claim and that remand is required for a new VA examination pursuant to Barr v. Nicholson, 21 Vet. App. 303 (2007). See June 2021 Representative Statement. The Board finds that the representative's argument and citation to Barr is inapposite because the February 2011 VA examination was not provided when developing a left knee service-connection claim. See Barr 21 Vet. App. at 311 ("Once [VA] undertakes the effort to provide an examination when developing a service-connection claim...[VA] must provide an adequate one"). Rather, as the Veteran has not been afforded a VA examination for his left knee disability claim, the applicable criteria is the criteria for when VA's duty to assist requires VA to provide an examination. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In McLendon, the Court stated that : In disability compensation claims, [VA] must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for [VA] to make a decision on the claim. As to the first McLendon element, in the April 2019 decision the Board stated that "the Veteran does not have a current, diagnosed left knee disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim." In the November 2020 Memorandum Decision, the Court discussed the February 2011 VA examination report that stated that "[t]here is the additional diagnosis of mild degenerative changes...of the left knee," noted that "there is no dispute that the Board clearly erred in finding that there was no evidence of a left knee disability during the relevant period on appeal" and further stated that "[a]ccordingly, the Court will reverse the Board's clearly erroneous finding that [the Veteran] did not have a current left knee disability at any point during the period on appeal." Based on the February 2011 VA examination report and the November 2020 Memorandum Decision, the Board finds that the Veteran has been shown to have a left knee disability and that thus the first McLendon element has been met. As to the second McLendon element, service treatment records (STRs) included a July 1982 Medical Board Proceedings document, which noted "[p]ain in left...knee," and a July 1982 Medical Board narrative summary, which noted a chief complaint of "[p]ain in the left...knee" and stated that the Veteran "has pain in the back of his left knee." Also, the February 2011 VA examination report stated that "[a]fter [the Veteran] entered the military, he began to experience pain in various areas of the left leg. Sometimes the pain occurred in the knee" and that "[t]hough this pain began during Basic Training, it became more severe at his duty station, where, because he was slower than everyone else, he was required to do physical training two times a day." Based on this evidence, the Board finds that the second McLendon element has been met. As to the third McLendon element, the February 2011 VA examination report stated that the Veteran "had continued pain in various areas of the left leg, mostly...the medial knee...He decided he had to 'live with it'" and that "[t]he [Veteran] reports that over time the condition has worsened. The parts involved are the left...knee." The Veteran's representative referenced this language in their Reply Brief to the Court and stated that "the Veteran has provided evidence of experiencing a continuity of symptomatology since service." Further, in the June 2021 statement, the representative referenced "the Veteran's lay testimony of continuity of symptomatology." In light of the Veteran's competent reports regarding the left knee documented at the February 2011 VA examination, the Board finds that the "low threshold" of the third McLendon element has been met. See McLendon, 20 Vet. App. at 83. As to the fourth McLendon element, the February 2011 VA examination report noted that the mild degenerative changes of the left knee "are consistent with aging." The Board finds that this conclusion, without further explanation or discussion regarding the Veteran's competent lay evidence documented in the February 2011 VA examination report as to "continued pain" in the left knee, is not sufficient competent evidence to make a decision on the Veteran's claim at this time. As such, the Board finds that the fourth and final McLendon element has been met. Accordingly, remand is warranted to afford the Veteran a VA examination and obtain a VA opinion addressing direct service connection, as outlined in the remand directives below. 2. Service connection for flat feet. 3. Reopening of the previously denied claim for service connection for left clubfoot. 4. Reopening of the previously denied claim for service connection for a left ankle condition. 5. Reopening of the previously denied claim for service connection for a left hip condition. The Veteran's representative stated in a June 2021 statement that the Veteran: asserts that the other issues on appeal are intimately connected to the issue of service connection for left knee disability. This is because, if the issue of service connection for a left knee disability is remanded for a new examination, then that examination may result in findings that demonstrate the left knee disability is service connected and aggravated the other claimed disabilities. Therefore, the issues are inextricably intertwined...Thus the Board's decision on the issue of service connection for left knee disability must be viewed in conjunction with the other issues on appeal since the development conducted in the matter of service connection for a left knee disability may affect the outcome of the other issues. In light of representative's contention and that the left knee disability claim is being remanded for further development, the Board finds that the other claims are currently inextricably intertwined with the left knee disability claim and that remand is also warranted for such claims. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Afford the Veteran a VA examination with respect to his left knee disability claim. The examiner must provide an opinion addressing the following: Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that a left knee disability had its onset during service or is otherwise related to service. The examiner's attention is invited to: (a.) As to a current disability, the February 2011 VA examination report, which stated that "[t]here is the additional diagnosis of mild degenerative changes...of the left knee." (b.) As to in-service events, a July 1982 Medical Board Proceedings document that noted "[p]ain in left...knee," a July 1982 Medical Board narrative summary that noted a chief complaint of "[p]ain in the left...knee" and stated that the Veteran "has pain in the back of his left knee" and the February 2011 VA examination report that stated "[a]fter [the Veteran] entered the military, he began to experience pain in various areas of the left leg. Sometimes the pain occurred in the knee" and that "[t]hough this pain began during Basic Training, it became more severe at his duty station, where, because he was slower than everyone else, he was required to do physical training two times a day." (c.) As to nexus, the contention that, essentially, the Veteran has experienced a continuity of left knee symptomatology since service. See February 2011 VA examination report (stating that the Veteran "had continued pain in various areas of the left leg, mostly...the medial knee...He decided he had to 'live with it'" and that "[t]he [Veteran] reports that over time the condition has worsened. The parts involved are the left...knee"); Veteran's Representative's Court Reply Brief (referencing the quoted language from the February 2011 VA examination report and stating that "the Veteran has provided evidence of experiencing a continuity of symptomatology since service"). For all opinions provided, the examiner must include the underlying reasons for any conclusions reached. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoopengardner, 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.