Citation Nr: A24021925 Decision Date: 04/30/24 Archive Date: 04/30/24 DOCKET NO. 210104-127967 DATE: April 30, 2024 REMANDED Entitlement to service connection for left knee disability, to include as secondary to service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1985 until his honorable discharge in March 1989. In July 2020 the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a July 2020 decision that determined that new and relevant evidence had been received to readjudicate the claim for service connection for left knee disability, and denied the claim on the merits. In December 2020, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior July 2020 decision. In the January 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the July 2020 Regional Office decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301; See also Terry v. McDonough, 37 Vet. App. 1 (2023). If evidence was submitted during the period after the Regional Office issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim of left knee disability, any evidence the Board could not consider will be considered by the Regional Office in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). The AOJ's finding that new and relevant evidence had been received is a favorable finding by the AOJ and the Board will proceed to the address the claim on the merits. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). Entitlement to service connection for left knee disability The Veteran filed a claim for entitlement to service connection to include as secondary to bilateral pes planus. On VA examination in November 2019, the Veteran stated that he did a lot of marching while in service, and he continued to have knee pain since service. The Veteran also asserts that his left knee disability is secondary to service-connected disability, to specifically include pes planus and right foot hallux valgus, hallux rigidus, and residuals of talar fracture. The Veteran has had two VA examinations, in November 2019 and July 2020. Both provided negative nexus opinions; however, they did not discuss direct service connection despite the Veteran's assertions of onset in service. The Board has reviewed the Veteran's service treatment records and an August 1986 entry states that the Veteran had "pain shooting down [left] leg to where it feels weak." He reported "numbness/tingling [left] leg down to knee" and "radiating pain in [left] knee." This entry was also not discussed in either VA examination. Both examinations provided opinions on secondary service connection. However, neither examiner addressed whether the claimed left knee disability has been aggravated by a service-connected disability. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (Where an examiner finds that a service-connected disability did not cause a claimed disorder, it is not clear that aggravation has been addressed). Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As a result, the claim must be remanded for an addendum opinion. The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the etiology of the Veteran's left knee disability from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether: 1) it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the left knee disability had its onset in or is otherwise related to active service, and 2) it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's left knee disability, has been caused by or aggravated (i.e., any increase in severity which worsened the disability beyond its natural progression) by the service-connected right foot disabilities and bilateral pes planus, specifically addressing the following. In providing the requested opinions, the examiner should consider: 1) the August 1986 service treatment record documenting knee pain and 2) the Veteran's assertion that he marched in service and has had continuous left knee pain since service; and 3) the May 2020 private opinion linking the Veteran's service-connected flat feet to his knee arthritis, and December 2018 VA foot examination noting that the Veteran's ability to kneel was impacted by his foot disabilities. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his disability, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, may be an insufficient rationale. G. E. Wilkerson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, 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.