Citation Nr: 22012609 Decision Date: 03/04/22 Archive Date: 03/04/22 DOCKET NO. 16-52 478 DATE: March 4, 2022 ORDER Entitlement to service connection for a right knee disability is granted. REMANDED Entitlement to service connection for a back disability is remanded. FINDING OF FACT Resolving reasonable doubt in his favor, the Veteran's right knee disability is related to his service-connected left knee disability. CONCLUSION OF LAW The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1973 to June 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision by the Department of Veterans Affairs (VA). In July 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. This case was remanded in August 2019, May 2020, and August 2021 for further development. Entitlement to service connection for a right knee disability Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Arthritis is an enumerated condition under 38 C.F.R. § 3.309 (a); Walker, 708 F.3d 1331. When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When the evidence persuasively favors one side or the other, the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, 2021 U.S. App. LEXIS 37307, No. 2020-2067 (Fed. Cir., Dec. 17, 2021); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Secondary service connection may be granted for disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). The evidence must show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); see also Allen v. Brown, 7 Vet. App. 439 (1995). Where lay evidence is competent, the Board must weigh the competent lay evidence against the other evidence of record in determining credibility. Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006). However, the absence of corroborating records is an insufficient basis on which to find lay statements not credible. Id. at 1337. Entitlement to service connection for a right knee disability The Veteran has been diagnosed as having degenerative joint disease and degenerative arthritis of the right knee. See October 2019, March 2021 and December 2021 VA examination reports. The Veterans has reported that his service-connected left knee causes an abnormal gait and adds stress to right knee. See December 2015 Statement. VA examiners consistently opined that the Veteran's right knee disability was not caused by his service-connected left knee disability. See October 2019, March 2021 and December 2021 VA opinions. However, these opinions did not properly address whether the left knee disability aggravated the right knee disability and relied on medical research and not the Veteran's specific medical history. Therefore, the Board finds these opinions inadequate. The December 2021 VA examiner opined that it is more than likely that his right knee arthritis stemmed from his extreme obesity and provided well-reasoned rationale for this opinion. However, the examiner also stated that it was possible that his left knee disability would put additional stress on his right knee causing or aggravating his right knee arthritis. Reading the December 2021 VA opinion in a light most favorable to the Veteran, the Board finds that the opinion supports a finding that the Veteran's right knee disability was aggravated by his left knee disability. Although the examiner appears to provide a negative opinion, that opinion was based on the Veteran's obesity, and not the left knee, being the primary cause of his right knee disability. The opinion, however, did state that it was possible that added stress caused by the left knee disability aggravated his right knee disability. Therefore, resolving all doubt in the Veteran's favor, his right knee disability was aggravated by his service-connected left knee disability, and entitlement to service connection is granted. See Gilbert (Daniel R.) v. Shinseki, 26 Vet. App. 48 (2012) (per curiam). REASONS FOR REMAND Entitlement to service connection for a back disability is remanded. Upon review of the record the Board finds that there has not been substantial compliance with the Board's previous remand directives regarding this issue and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board previously remanded this matter to obtain an opinion regarding whether the Veteran's diagnosed lumbar degenerative joint disease was related to service. In December 2021, a VA examiner opined that the Veteran's diagnosed back disabilities were not related to service. The examiner noted that the Veteran complained of pain in his back since service, but based this opinion on the lack of any documented injury or pain in the back in service. The examiner failed to consider the Veteran's complaints of having pain in his back since his fall from a telephone poll in service. Additionally, the examiner did not consider private chiropractic treatment dated July 2019 and November 2019, which report that the Veteran has had pain in his back since the fall in service and his positional issues and spine subluxations are from the impact injury. In order to properly adjudicate this appeal, a fully articulated and soundly reasoned medical opinion that accounts for the Veteran's competent lay testimony is needed. As such, another VA examination must be afforded to the Veteran. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007). The matters are REMANDED for the following action: 1. The AOJ should obtain a VA medical addendum opinion by the December 2021 VA examiner, if available; if the December 2021 VA examiner is not available, the AOJ should obtain an opinion from another provider, such as a neurologist, if available. If an in-person examination is found to be necessary, one should be scheduled if not otherwise contraindicated due to safety concerns. If an in-person examination is not possible, a telehealth examination should be conducted. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all back disabilities present during the appeal period (from March 2014). (b.) For each back disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service? Please explain why. The Veteran's statements of having continuous pain in his back since the fall in service as well as private chiropractic treatment dated July 2019 and November 2019, which report that the Veteran has had pain in his back since the fall in service and his positional issues and spine subluxations are from the impact injury, must be considered. A complete rationale must be provided for all opinions expressed. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why that opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Meawad 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.