Citation Nr: 22018647 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 16-04 711 DATE: March 30, 2022 REMANDED Entitlement to service connection for a right knee disability to include as secondary to the Veteran's service-connected left knee disability, is remanded. Entitlement to service connection for a low back disability, to include as secondary to the Veteran's service-connected left knee disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1977 to February 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decisions issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA) in Jackson, Mississippi. The Board most recently remanded these matters in August 2020 for further development and it is now before the Board. As discussed in more detail below, review of the claims file reveals that the evidence of record is insufficient to decide the claims on appeal and adequate medical opinions are necessary before a decision can be reached on the merits of these matters. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. Accordingly, remand is required to obtain adequate medical opinions that comply with the Board remand directives. 1. Entitlement to service connection for a right knee disability to include as secondary to the Veteran's service-connected left knee disability. 2. Entitlement to service connection for a low back disability, to include as secondary to the Veteran's service-connected left knee disability. Although the Board regrets the additional delay, the Veteran's claims seeking entitlement to service connection for right knee and low back disabilities, to include as secondary to the Veteran's service-connected left knee disability, must be remanded for additional development to ensure there are adequate medical opinions upon which to address the merits of the Veteran's claims. In September 2018 and August 2020 Board decisions, the Veteran's claims were remanded for addendum VA medical opinions that addressed whether the Veteran's right knee and low back disabilities were aggravated by the Veteran's service-connected left knee disability pursuant to 38 C.F.R. §3.310 (2018). Addendum VA medical opinions were most recently received in October 2021 and November 2021; however, neither of these opinions sufficiently addressed the theory of secondary service connection as the examiner again incorrectly required the Veteran's right knee and back disabilities to be permanently aggravated by the Veteran's service-connected left knee disability. In Ward v. Wilkie, 31Vet. App.233 (2019), the Court unambiguously held that aggravation under 38 C.F.R. §3.310(b) does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disabilityany additional impairment of earning capacityin nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increaseregardless of its permanence." See id. at 239. Accordingly, remand is required again to obtain adequate medical opinions that comply with the Board remand directives. The matters are REMANDED for the following action: 1. Obtain an addendum VA medical opinion from an appropriate VA examiner. Following a complete review of the electronic claims file, including a copy of this REMAND, the VA examiner is requested to address the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current right knee disability has been aggravated (any worsening) by the Veteran's service-connected left knee disability? (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current low back disability has been aggravated (any worsening) by the Veteran's service-connected left knee disability? The VA examiner is remined that permanent worsening is not necessary for secondary service connection. Secondary service connection is warranted for any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence. The VA examiner's opinions must be supported by complete explanatory rationale based on the examiner's medical expertise, the examiner's clinical experience, current medical principles, and citations to the record, as appropriate. The examiner should consider all medical and lay evidence of record. If any Veteran reports or statements are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). If the clinician is unable to provide an opinion on these matters, the clinician must state whether the inability to render an opinion 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 clinician (does not have the knowledge or training). Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dorsey-Kwansa, 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.