Citation Nr: 24017294 Decision Date: 04/23/24 Archive Date: 04/23/24 DOCKET NO. 15-41 230 DATE: April 23, 2024 REMANDED Entitlement to an initial rating greater than 10 percent for service-connected left lower extremity shin splints with left knee patellofemoral syndrome is remanded. Entitlement to an initial rating greater than 10 percent for service-connected right lower extremity shin splints with right knee patellofemoral syndrome is remanded. From July 1, 2021, entitlement to an initial rating in excess of 10 percent for left knee instability is remanded. From July 1, 2021, entitlement to an initial rating in excess of 10 percent for right knee instability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1988 to December 1989. This matter come before the Board of Veterans 'Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Veteran provided testimony via videoconference before the undersigned Veterans Law Judge. A hearing was held before the undersigned in March 2020. A transcript of the hearing has been associated with the claims file. In June 2020, the Board remanded these matters for additional development. In a December 2022 decision, the Board denied an initial rating greater than 10 percent for service-connected bilateral lower extremity shin splints with bilateral knee patellofemoral syndrome and granted separate initial ratings of 10 percent, but no higher, for bilateral knee instability. The Veteran appealed the issues to the United States Court of Appeals for Veterans Claims (CAVC). In December 2023, the Court granted a Joint Motion for Partial Remand (JMPR) submitted by the Veteran and the Secretary of VA. The JMPR vacated and remanded the December 2022 Board decision insofar as it denied entitlement to ratings in excess of 10 percent for bilateral lower extremity shin splints with bilateral knee patellofemoral syndrome and ratings in excess of 10 percent for bilateral knee instability. The parties agreed that they did not wish to disturb the portion of the Board's decision concerning these issues only insofar as it granted ratings of 10 percent, but no higher, for the service-connected bilateral knee instability. In the December 2023 JMPR, the parties agreed that the December 2022 Board decision erred by not providing an adequate statement of reasons or bases in support of its determinations and by not ensuring that VA satisfied the duty to assist. Entitlement to an initial rating greater than 10 percent for service-connected left lower extremity shin splints with left knee patellofemoral syndrome is remanded. Entitlement to an initial rating greater than 10 percent for service-connected right lower extremity shin splints with right knee patellofemoral syndrome is remanded. From July 1, 2021, entitlement to an initial rating in excess of 10 percent for left knee instability is remanded. From July 1, 2021, entitlement to an initial rating in excess of 10 percent for right knee instability is remanded. The parties to the December 2023 JMPR noted that the Board failed to provide an adequate statement of reasons or bases regarding June 2021 VA examination findings and whether there was substantial compliance with the Board's June 2020 remand. In the June 2020 remand for a new examination, the Board instructed that for any diagnosis of either knee noted during the pendency of the claim, to include osteoarthritis and meniscal tear, "the examiner must indicate whether it is at least as likely as not that the disability is due to service, or is due to or has been aggravated by service-connected shin splints and/or patellofemoral syndrome." Subsequently, the June 2021 VA examiner stated that "[t]here is not, nor has ever been, a diagnosis of shin splints. There is no diagnosis of patellofemoral syndrome." However, an earlier April 2013 VA examiner diagnosed the Veteran with bilateral shin splints and bilateral patellofemoral syndrome. Thus, the findings of the June 2021 VA examination are based on an inaccurate factual premise and failed to substantially fulfill the Board's June 2020 remand requirements in light of the April 2013 VA examination diagnoses. Accordingly, a VA addendum opinion is required on remand. Stegall v. West, 11 Vet. App. 268 (1998); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Likewise, the parties to the December 2023 JMPR noted that the Board failed to discuss whether the July 2021 VA examination is adequate for the same reasons provided in the preceding paragraph. As in the June 2021 VA examination, the July 2021 VA examination stated that "[t]here is, and has never been, a diagnosis of shin splints." Yet, as noted, an earlier April 2013 VA examiner diagnosed the Veteran with bilateral shin splints and bilateral patellofemoral syndrome. Thus, the findings of the July 2021 VA examination are based on an inaccurate factual premise and failed to substantially fulfill the Board's June 2020 remand requirements in light of the April 2013 VA examination diagnoses. Accordingly, a VA addendum opinion is required on remand. Id. Moreover, the parties to the December 2023 JMPR agreed that the Board failed to provide an adequate statement of reasons or bases as to the adequacy of the July 2021 VA examination because the VA examiner stated that the Veteran had not ever been diagnosed with a right knee meniscal condition, when the record contains evidence that the Veteran has had a meniscal condition, and this directly contradicts the same examiner's own description in the VA examination report of bilateral meniscal tears, as well as other evidence showing a right knee meniscal condition. Thus, the findings of the July 2021 VA examination are contradictory and based on an inaccurate factual premise. Id. Accordingly, a VA addendum opinion is required on remand. Furthermore, the parties agreed that the Board failed to ensure the duty to assist was fulfilled as to potentially outstanding treatment records. See 38 C.F.R. § 3.159. In December 2015, VA authorized VA Choice physical therapy by a non-VA provider, Jennifer Powell. A December 2015 VA note states that an appointment with Jennifer Powell was made for December 28, 2015. However, there are no records from Jennifer Powell in the record. On remand, all records must be obtained and associated with the record. The matters are REMANDED for the following actions: 1. Obtain authorization from the Veteran to obtain outstanding private treatment records, namely those from VA Choice physical therapy by non-VA provider, Jennifer Powell. Inform the Veteran that he may alternatively submit these records on his own behalf. 2. Thereafter, obtain an addendum opinion to determine the current severity of the Veteran's bilateral shin splints and bilateral patellofemoral syndrome. The examiner should be advised that an addendum opinion is required because the findings of the June 2021 and July 2021 VA examiners were based on inaccurate factual premises that the Veteran had not been diagnosed with bilateral shin splints, bilateral patellofemoral syndrome, or a right knee meniscal condition. The claims file should be carefully reviewed. The examiner should answer the following: For any diagnosis of either knee noted during the pendency of the claim other than patellofemoral syndrome, to include right knee osteoarthritis and meniscal tear, the examiner must indicate whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the disability is due to service, or is due to or has been aggravated by service-connected shin splints and/or patellofemoral syndrome. The examiner must provide separate opinions addressing both causation and aggravation. 38 C.F.R. § 3.310 (b) does not require that there be "permanent" worsening of the nonservice connected disability. (Continued on the next page) ? If the Veteran has disabilities/diagnoses of either knee that are not related to service, are not due to a service-connected disability, and have not been aggravated by a service-connected disability, then the examiner must specifically identify symptoms attributable to these diagnoses so that VA may properly rate the service-connected disabilities. If the examiner is unable to determine which symptoms are related to each diagnosis, then the examiner must explain why this is so. 3. Then, readjudicate the Veteran's claims on appeal. If the benefits sought on appeal remain denied, provide the Veteran and his representative a supplemental statement of the case and allow an appropriate period for response. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Griffith, Shari 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.