Citation Nr: A25017993
Decision Date: 02/27/25	Archive Date: 02/27/25

DOCKET NO. 240129-412484
DATE: February 27, 2025

REMANDED

Entitlement to service connection for right knee condition, to include total right knee replacement, is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Navy from July 1986 to November 1988.  

This matter is on appeal to the Board of Veterans' Appeals (Board) from a June 2023 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  In the January 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran timely appealed the portion of the rating decision pertaining to the issue above and requested direct review of the evidence considered by the RO.  38 C.F.R. § 20.202.  The Board notes that while the date of decision was listed as "12/19/24", this appears to have been an error.  Reading the appeal in a liberal manner, the decision on appeal is June 2023 as that is the most recent rating decision for the right knee claim within the past year.  38 C.F.R. § 20.202(a).  

Therefore, the Board may only consider the evidence of record at the time of the June 2023 agency of original jurisdiction (AOJ) decision on appeal.  38 C.F.R. § 20.301.  Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board.  38 C.F.R. §§ 20.300, 20.301, 20.801.  

However, because the Board is remanding the claim, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims.  38 C.F.R. § 3.103(c)(2)(ii).  

1. Service Connection for Right Knee Condition is Remanded.

The issue of entitlement to service connection for a right knee condition is remanded to correct a duty to assist error that occurred prior to the June 2023 rating decision on appeal.  

The Veteran contends that his right knee condition was caused by his active-duty service.  Alternatively, he asserts that his right knee condition was secondary to his service-connected right shoulder disability.  See September, November 2021 Fully Developed Claim.  

The AOJ obtained a May 2023 VA examination prior to the June 2023 rating decision on appeal where the Veteran was diagnosed with total right knee replacement.  The examiner provided an opinion regarding direct service connection. However, the AOJ failed to obtain a medical opinion regarding whether the right knee condition was caused or aggravated by the Veteran's service-connected right shoulder disability.  The Veteran advanced the theory of secondary service connection prior to the rating decision on appeal.  To correct this pre-decisional duty to assist error, a remand is warranted to obtain an addendum medical opinion.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  

The matters are REMANDED for the following action:

1. The claims file should be sent to an appropriate clinician to review and offer an opinion as to the following:

(a.) Whether the current right knee condition was caused by the service-connected right shoulder disability.

(b.) Whether the current right knee condition was aggravated by the service-connected right shoulder disability.

The need for an examination is left to the discretion of the examiner.  A rationale for all opinions is requested as adjudicators are precluded from making any medical findings. 

 

 

D. Martz Ames

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Mathew, M.

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.