Citation Nr: 22010526 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 08-30 029A DATE: February 23, 2022 REMANDED Entitlement to service connection for a right knee disability, to include as secondary to a service-connected back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1979 to December 1979. In a July 2019 decision, the Board denied the claim. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the Court issued a memorandum decision vacating the Board's decision and remanded the Veteran's appeal to the Board for readjudication. The claim was most recently before the Board in November 2020. There has not been substantial compliance with the remand directives and the claim must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a right knee disability, to include as secondary to a service-connected back disability is remanded. The claim must be remanded again because the December 2020 VA medical opinion addendum is inadequate. The rationale provided in the December 2020 medical opinion is nearly identical to the April 2019 VA medical opinion that the Court rejected as inadequate in the April 2020 memorandum decision. In the memorandum decision, the Court specifically addressed that the April 2019 medical opinion rationale for aggravation focused on secondary causation, which is a separate and distinct theory of entitlement than aggravation. The December 2020 VA opinion appears to rely on previous knee MRI and radiographs that show both knees having the same level of disability, instead of the right knee having a greater progression of disability than the left knee. Additionally, the medical opinion explains that the MRI and radiograph results for the Veteran's right knee do not reflect a disability from an injury 40 years earlier. However, the age of the injury is not relevant as aggravation does require a disability to be caused by the original injury. Since, the December 2020 VA examination opinion is inadequate a new addendum VA examination is warranted. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Forward copies of all pertinent records to an appropriate VA examiner, who is different than any previous examiner's (if possible) to obtain a medical opinion on the likely etiology of the right knee disability claim. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled. The examiner is asked to answer the following questions: (a) Is it at least as likely as not (50 percent probability) that any currently diagnosed knee condition was incurred in or is otherwise related to service? (b) If (a) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed knee condition has been (i) caused by or (ii) aggravated by the Veteran's service-connected back disability? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made. 2. Confirm that the VA medical opinions provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.