Citation Nr: 22015393
Decision Date: 03/17/22	Archive Date: 03/17/22

DOCKET NO. 16-19 670
DATE: March 17, 2022

REMANDED

Entitlement to service connection for a left knee disability, to include as secondary to the service-connected right knee disability is remanded.

Entitlement to service connection for a low back disability, to include as secondary to the service-connected right knee disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty from December 1966 to November 1968. These matters were most recently remanded in August 2020. There has not been substantial compliance with the remand directives and the claims must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998).

1. Entitlement to service connection for a left knee disability, to include as secondary to the service-connected right knee disability.

2. Entitlement to service connection for a low back disability, to include as secondary to the service-connected right knee disability.

The claims must be remanded again because the May 2021 and July 2021 VA opinions are inadequate. 

The May 2021 opinion is inadequate as to both direct and secondary service connection on each claim. The negative opinion on direct service connection is based solely on a current documentation of treatment for the back or the knee. The opinion as to secondary service connection did not include any rationale and considered the wrong standard for secondary aggravation; the correct standard is "any" increase in disability. 38 C.F.R. § 3.310 (b); Allen v. Brown, 7 Vet. App. 439 (1995). 

The July 2021 addendum opinion from a different examiner also included the incorrect standard for secondary service connection.  

The matters are REMANDED for the following action:

1. Ask the Veteran to identify any providers who treated him for back or knee complaints since August 2020. Take all appropriate action to obtain records from identified providers.

2. After completion of the foregoing, forward copies of all pertinent records to an appropriate VA examiner to obtain a medical opinion on the likely etiology of any diagnosed left knee and low back disabilities. 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) Identify all currently diagnosed left knee and back disabilities. 

(b) Is it at least as likely as not that any currently diagnosed left knee disability is (i) directly related to service; (ii) caused by the service-connected right knee disability, or; (iii) aggravated by the service-connected right knee disability?

(c) Is it at least as likely as not that any currently diagnosed back disability is (i) directly related to service; (ii) caused by the service-connected right knee disability, or; (iii) aggravated by the service-connected right knee 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.

The examiner must provide reasons for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered.

3. Confirm that the VA medical opinion 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	T. Jarman, 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.