Citation Nr: 24001089 Decision Date: 01/08/24 Archive Date: 01/08/24 DOCKET NO. 22-00 313 DATE: January 8, 2024 REMANDED Entitlement to service connection for left knee disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from March 1966 to March 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2018 decision, issued by Department of Veterans Affairs Regional Office (RO), which is also the Agency of Original Jurisdiction (AOJ). Entitlement to service connection for left knee disorder. This appeal was most recently before the Board in August 2023, at which time it was remanded for additional development. In compliance with the August 2023 Board remand directives, VA opinions regarding the etiology of the Veteran's left knee disorder are now of record. In its August 2023 Remand, the Board first noted that a service member is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination or enrollment. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The term "noted" refers to "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). When no pre-existing condition is noted upon examination for entry into service, a veteran is presumed to have been sound upon entry and the burden then shifts to VA to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304. To rebut the presumption of soundness, there must be clear and unmistakable evidence that (1) a Veteran's disability existed prior to service, and (2) that the pre-existing disability was not aggravated during service. Id. However, the Board found the Veteran is presumed to have been sound at entrance, because no left knee disorder was clinically noted and he did not report any previous injury history for the left knee at the time of enlistment. The Board further found there is no clear and unmistakable evidence to rebut the presumption for soundness. Accordingly, the Board concluded that the question is one of direct service connection, for which the relevant standard is whether any current left knee disorder was at least as likely as not incurred in or caused by service. The Board's directive specifically instructed that the examiner note that, because no left knee disability was clinically noted on the Veteran's military entrance examination, he is presumed sound at entrance into the military as to his left knee. The directive added that the clinician "must disregard" any evidence suggesting the Veteran had any pre-existing left knee disability. Furthermore, the August 2023 Appellate Brief, submitted on the Veteran's behalf, raised the issues of secondary causation, as due to service-connected right-knee disorder, and/or as aggravated by right-knee disorder. The September 6, 2023 examination request accordingly specified these claims. However, for the aggravation issue, the request further specified that there be two aggravation questions, one for aggravation by right-knee total knee replacement and the other for aggravation by scar status post right-knee surgery. Therefore, four opinions were produced by a VA examiner later in September 2023. However, the AOJ in a second examination request on September 25, 2023 noted that the opinion on direct service connection, contrary to the Board's August 2023 directive, had referenced evidence suggesting the Veteran had a pre-existing left knee disorder. As that issue had been resolved in the Board's August 2013 Remand, the examiner was requested to provide an addendum opinion, which was issued a few days later in September 2023. As it is, all opinions produced are not adequate for purposes of VA adjudication. Starting with the negative addendum opinion on direct service connection, the examiner's rationale states the Veteran's exit examination from active service was silent for left knee symptoms or a condition. She added that, as no injury was reported in the in-service medical records, a nexus is not established. However, the opinion is conclusory and relies primarily, if not solely, on the absence of evidence in the record, without providing a further explanation. Under case law of the Board's reviewing court, the absence of evidence in the STRs is insufficient as the sole basis for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Therefore, the examiner's observation of the absence of any evidence in treatment records is unacceptable. Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); cf. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (a veteran's statement is competent evidence as to events that are capable of lay observation). As the Board stated in the August 2023 Remand concerning the inadequate July 2023 opinions, an absence-of-evidence opinion fails to explain why medical treatment was expected and why its absence was?medically significant to resolving the?medical?question at issue. As stated, secondary causation due to right knee and aggravation by right knee were addressed in the earlier September 2023 opinions. Both received the same rationale, in which the examiner first stated there are no medical records to show a reason for left knee and right-knee replacement. She observed that, most knee replacements are due to osteoarthritis and medical literature fails to demonstrate arthritis in one joint causing arthritis in another joint. In the second opinion on aggravation by service-connected scar status post right-knee surgery, the examiner stated medical literature fails to demonstrate that a scar of one joint can aggravate a condition in another joint. She added that there is no evidence of the scar aggravating the left knee beyond its natural progression. These opinions are conclusory and speculative. They speak to a general proposition about what causes "most knee replacements," they do not refer to specific medical evidence concerning the Veteran's left knee and, consequently, the rationales do not provide an explanation based on the record. Moreover, of the same or nearly the same rationales for the secondary causation opinion and the two aggravation opinions, the examiner failed to address the secondary causation and aggravation opinions as two independent concepts. Under 38 C.F.R. § 3.310 (a)(b), secondary causation is comprised of two prongs, which therefore present separate theories of entitlement. Each must be addressed. Therefore, a response to a "secondary" causation opinion question must provide separate opinions for proximate causation (secondary to) and causation showing a worsening to any degree of a pre-existing condition (aggravation by). See Atencio v. O'Rourke, 30 Vet. App. 74, 90-91 (2018). Moreover, as distinct and separate from proximate causation (secondary to), the Board needs to know for aggravation whether, but for the service-connected disability, the incremental increase in severity of a nonservice-connected disease or injury would not have occurred. See Spicer v. McDonough, 61 F.4th 1360, 1366 (Fed. Cir. 2023). See also El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under § 3.310 (b)). The prior Remand by the Board conferred on the Veteran the right to VA compliance with the terms of the Remand directives and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268 (1998). Moreover, the Secretary has a further duty to ensure any medical opinion provided is adequate. 38 U.S.C. § 5103A (a); 38 C.F.R. § 3.159 ; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds by Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). The claim is remanded for new opinions. The matter is REMANDED for the following action: 1. Contact the Veteran and/or his representative for information pertaining to any current treatment for left knee disorder at any VA facility and by any private treatment provider. Obtain any records of the above treatments not yet associated with the claims file and associate them with the file. The assistance of the Veteran and/or his representative should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. After all additional records have been obtained and associated with the claims file, but whether or not records are obtained, arrange for a review of the file by a VA examiner for knee conditions, other than the examiner for the September 2023 opinions of record. If the new examiner deems an examination to be necessary, arrange for that examination. Provide the examiner with the introductory text to this Remand above, as well as these directives. The examiner is requested to provide opinions addressing the following: (a) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that left knee disorder was incurred during active service or is caused by an event, injury or disease occurring in active service. The examiner is further requested to note that, because no left knee disability was noted clinically on the Veteran's military entrance examination, he is presumed to be sound at entrance into the military as to his left knee. The examiner therefore must disregard any evidence in the record suggesting the Veteran had a pre-existing left knee disability. Such evidence is not applicable to this issue. (b) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) left knee disorder is proximately due to or the result of (secondary to) service-connected right-knee total knee replacement. (c) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that an increase in the severity of left knee disorder would not have resulted but for (aggravated by) service-connected right-knee total knee replacement. (d) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that an increase in the severity of left knee disorder would not have resulted but for (aggravated by) service-connected scar status post right-knee surgery. The examiner is to note that, for the above 3 opinion questions, "proximately due to or the result of (secondary to)" and "would not have resulted but for (aggravated by)" are separate and distinct concepts and must be addressed individually. Each opinion must be consistent in meaning with the above-quoted language. Each opinion rendered by the examiner must be accompanied by a rationale, by which conclusions are supported by references to and discussion of findings on examination, to clinical findings in the medical evidence of record and/or to accepted medical literature. The examiner is requested to comment on any relevant opinions found in the record. The examiner is further requested to discuss any lay evidence of the Veteran, to include his reports to treatment providers and examiners as they appear throughout the record. The examiner is urged to note that opinions rendered without discussing lay evidence as it pertains to the above claim will be deemed inadequate for VA adjudication purposes. 3. After the above development and any other development indicated is completed, adjudicate the claim. If the benefit sought is not granted in full, send the Veteran and his representative a Supplemental Statement of the Case and afford them a reasonable opportunity to respond before the record is returned to the Board. EMILY TAMLYN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, 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.