Citation Nr: 22018983
Decision Date: 03/31/22	Archive Date: 03/31/22

DOCKET NO. 14-30 603
DATE: March 31, 2022

REMANDED

The claim for service connection for osteoarthritis, right knee, is remanded.

REASONS FOR REMAND

In December 2017, the Veteran was afforded a hearing before the undersigned.

In March 2018, the Board remanded a claim for service connection for a right knee disability.  In February 2020, the Board denied the claim.  The appellant appealed to the U.S. Court of Appeals for Veterans Claims (Court).  In January 2021, while his case was pending at the Court, the VA's Office of General Counsel and the Veteran's representative filed a Joint Motion requesting that the Court vacate the Board's February 2020 decision.  That same month, the Court issued an Order vacating the February 2020 Board decision on that issue and remanding the case for compliance with a Joint Motion for Remand (JMR).   

In June 2021, the Board remanded the claim for service connection for a right knee disability for additional development.  

1.  The claim for service connection for osteoarthritis, right knee, is remanded.

In January 2022, the RO granted service connection for right knee instability.  

The most recent and relevant VA opinion of record is associated with a January 2022 VA disability benefits questionnaire (DBQ).  That DBQ does not include an opinion on the possibility of service connection for right knee osteoarthritis as secondary to service-connected right knee instability.  See 38 C.F.R. § § 3.310.  

In reviewing service-connection claims where a VA examination has been performed, the Board must make a determination as to whether the examination report is adequate to make a decision on the claim, notwithstanding the fact that the Board may not have found the examination necessary in the first place.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.  Id.; Schroeder v. West, 212 F.3d 1265, 1269-71 (Fed Cir. 2000).  Accordingly, a remand is required in order to obtain supplemental opinions.  

The matters are REMANDED for the following action:

1.  Return the file to the examiner who authored the January 2022 VA DBQ on the Veteran's knee and lower leg, or if that examiner is not available, to another examiner.  If any of the requested opinion(s) cannot be provided without a physical examination, one should be scheduled.  The examiner should be notified that service connection is currently in effect for disabilities that include right knee instability.  After review of the record, the examiner should answer the following questions:

a) Is it at least as likely as not (i.e., a likelihood of 50 percent or greater) that the Veteran's right knee osteoarthritis was caused or aggravated (made worse) by his service-connected right knee instability?  Why or why not?

If aggravation due to service-connected right knee instability is found, the examiner should identify the baseline level of severity of the nonservice-connected disease or injury, i.e., osteoarthritis, by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.

 

 

MATTHEW W. BLACKWELDER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T.S.E., 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.