Citation Nr: 24006288 Decision Date: 02/06/24 Archive Date: 02/06/24 DOCKET NO. 20-22 593 DATE: February 6, 2024 REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for residuals of right ankle fracture as secondary to the left knee disability is remanded. Entitlement to a temporary total evaluation for total left knee replacement because of treatment for a service-connected condition or other condition subject to compensation or hospital treatment in excess of 21 days is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from June 1973 to January 1977. This appeal to the Board of Veterans' Appeals (Board) is from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied the Veteran's claims for service connection for a right knee disorder, a left knee disorder, and a right ankle disorder, as well as the claim for a temporary total evaluation due to hospital treatment or convalescence for a total left knee replacement. See August 2013 Rating Decision. The Veteran initiated an appeal. See August 2014 Representative Correspondence (requesting that the correspondence serve as a Notice of Disagreement with the August 2013 rating decision). In a February 2017 decision, the Board noted that, despite the Veteran's timely appeal, the agency of original jurisdiction (AOJ) had not yet issued a Statement of the Case (SOC) addressing the above-listed claims. See February 2017 Board Decision. As such, the Board remanded the claims pursuant to Manlincon v. West, 12 Vet. App. 238, 240 (1999) for issuance of a Statement of the Case (SOC). See id. See also 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(c), 19.26. Thereafter, in a June 2019 decision, the Board again took jurisdiction over the claims for service connection for a left knee disorder, a right knee disorder, a right ankle disorder, and a temporary total evaluation for the total left knee replacement, noting that no SOC had been issued regarding the claims, despite the Board's prior remand instructions. See June 2019 Board Decision. The Board thus remanded the claims again, instructing the AOJ to issue an SOC to the Veteran addressing the claims for service connection for a right knee disability, a left knee disability, a right ankle disability, and a temporary total rating for total left knee replacement, among others. See id.; Manlincon, 12 Vet. App. at 240. An SOC was subsequently issued in April 2020 denying the claims for service connection for a left knee disorder, a right knee disorder, a right ankle disorder, and a temporary total evaluation for the total left knee replacement, and the Veteran perfected an appeal. See May 2020 Substantive Appeal (VA Form 9); see also 38 C.F.R. §§ 19.20, 19.21, 19.22, 19.52, 20.200, 20.201, 20.202, 20.203 (setting forth requirements and timeframe for initiating and perfecting an appeal under VA's legacy system). In May 2022, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a virtual hearing. A copy of the transcript has been associated with the claims file. At the May 2022 hearing, the Veteran also offered testimony regarding a claim of entitlement to service connection for a low back disorder. See May 2022 Board Hearing Transcript. However, that issue was addressed in a separate, February 2023 Board decision decided by a panel of three VLJs. See February 2023 Board Decision. Service connection for a lumbar spine pathology has since been established. See December 2023 Rating Decision (granting service connection for degenerative joint disease, lumbar spine, with a 10 percent evaluation effective November 21, 2006). As this represents a full grant of the benefit sought on appeal, that issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Unfortunately, for the reasons discussed below, the remaining claims on appeal require still further development and must be remanded. While the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claims so that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A(a); 38 C.F.R. § 3.159(c), (d). 1. Entitlement to service connection for a left knee disability is remanded. 2. Entitlement to service connection for a right knee disability is remanded. The Veteran asserts entitlement to service connection for left and right knee disorders, maintaining that these conditions are related to his active service. See, e.g., May 2022 Board Hearing Transcript. In particular, he asserts that his left and right knee conditions initially manifested during active duty and continued to progress in the years following his discharge, ultimately resulting in his current knee conditions. See id. Given the Veteran's competent lay assertions as to onset and continuity of left and right knee symptomatology, considering the medical records reflecting consistent complaints of and treatment for longstanding left and right knee problems since at least the 1980s, and in light of the lack of evidence necessary to adjudicate the claims, the Board finds that a VA examination/medical opinion is required to determine whether the Veteran's left and right knee disorders are related to his active service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (reflecting that VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim). 3. Entitlement to service connection for residuals of right ankle fracture as secondary to the left knee disability is remanded. 4. Entitlement to a temporary total evaluation for total left knee replacement because of treatment for a service-connected condition or other condition subject to compensation or hospital treatment in excess of 21 days is remanded. The Veteran also asserts entitlement to service connection for residuals of right ankle fracture as secondary to his claimed left knee condition. See, e.g., May 2022 Board Hearing Transcript (testifying that he suffered an ankle fracture after he fell due to his left knee condition). See also November 2012 VA Primary Care Team Note (reflecting that the "Patient sustained a fall and broke his right ankle due to problems with his left knee"). Additionally, he has claimed entitlement to a temporary total evaluation due to hospital treatment or convalescence for a total left knee replacement. See May 2022 Board Hearing Transcript. As the theory of entitlement for these conditions is dependent upon service connection being awarded for a left knee condition, and because the claim for service connection for the Veteran's left knee pathology must be remanded, as discussed above, the issues are intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision cannot be rendered unless both issues have been considered). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Thereafter, upon receipt of all additional records, and any additional notification and/or development deemed warranted, schedule the Veteran for a VA examination by an appropriately qualified clinician to assist in determining the nature and etiology of the Veteran's right and left knee disabilities. The examination may be conducted via telehealth or similar service if deemed necessary. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file, including a copy of this REMAND, has been reviewed. The examiner should elicit a full history from the Veteran and document the Veteran's reported history in the examination report. All necessary diagnostic testing and evaluation should be performed, and all clinical findings reported in detail. If possible, the appropriate Disability Benefits Questionnaires (DBQs) should be filled out for this purpose. After examining the Veteran, evaluating the nature and severity of his asserted left and right knee disorders, and reviewing the Veteran's full history by conducting a complete review of the claims file (including all available lay statements and testimony, service records, medical treatment records and examination reports, and a complete copy of this REMAND), the examiner should diagnose and describe in detail all current left and right knee disorders found to be present. As to EACH identified left and/or right knee pathology identified on examination or diagnosed during the pendency of the claims, the examiner must provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any diagnosed left and/or right knee disorder (i) had its clinical onset during active service; (ii) was manifest within a year of service separation; (iii) was noted during service with continuity of the same symptomatology since service; or (iv) is otherwise related to any in-service disease, event, or injury. In providing these requested opinions, the examiner should note that that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including what he experienced during his active service, his medical history, and the onset, duration, and progression of observable symptomatology. Accordingly, the examiner must consider all lay assertions, to include any allegations of continuity of symptomatology. Additionally, although the examiner must consider all pertinent medical evidence, the examiner must consider and address, where appropriate, (i) the Veteran's Board hearing testimony that right and left knee symptoms initially manifested during active service and that these conditions continued to progress in the years following his discharge, ultimately resulting in his current knee conditions, and (ii) the medical records reflecting consistent complaints of and treatment for left and right knee conditions since at least the 1980s, so within several years of the Veteran's January 1977 separation from active service. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report observable symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report. If any examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 3. Following completion of the above directive, review the claims file to ensure compliance with this remand. If any examination report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.