Citation Nr: 0812557 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 02-12 736A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for a left knee disability, to include arthritis, formerly considered as polyarthralgia. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Mother ATTORNEY FOR THE BOARD W. Donnelly, Associate Counsel INTRODUCTION The veteran had active duty with the United States Navy from November 1989 to October 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2001 decision by the Baltimore, Maryland, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to the benefit sought. When the claim was previously before the Board in April 2006, the issue was recharacterized to reflect the veteran's February 2003 withdrawal of her claim for polyarthralgia, to include as due to an undiagnosed illness. She specified, however, that she wished to continue a claim of service connection for arthritis as directly related to her military service. The veteran testified before the undersigned acting Veterans Law Judge at a personal hearing held at the Board in February 2006. At that time, the veteran stressed that the joints involved in her claim were the knees. In an April 2006 Remand, the Board directed the Appeals Management Center (AMC) to examine the veteran and consider service connection for arthritis of the knees, in compliance with VA's duty to assist under the Veterans Claims Assistance Act of 2000 (VCAA). In a December 2007 decision, the AMC granted service connection for right knee degenerative arthritis and for a separate subluxation disability. The AMC continued the denial of service connection for any left knee disability. Therefore, because there has been a full grant of benefits with regard to the right knee disability, the sole issue remaining on appeal is that of service connection for a left knee disability. Unfortunately, a further Remand is necessary. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The April 2006 Remand directed that the AMC schedule a VA examination for purposes of determining whether a diagnosis of arthritis of the left or right knee was appropriate. Review of the claims file was required in connection with the examination. The VA examiner was instructed to offer an opinion as to whether any diagnosed arthritis is at least as likely as not related to any trauma during service. The examination was performed in January 2007, with an addendum including a medical opinion added in May 2007. The examiner diagnosed right knee arthritis based on a 2006 MRI, as well as a subluxing patella, patellar chondromalacia, and a popliteal cyst. He related the arthritis to unspecified trauma during service, though he offered no opinion regarding the other diagnoses. The examiner also diagnosed a subluxing patella and torn medial meniscus of the left knee. He stated that based on an August 2006 MRI, there was no chondromalacia or arthritis. No x-rays were performed. The examiner offered no opinion regarding a nexus between the diagnosed left knee conditions and service. The Board finds that a new VA examination is required, as the examination on Remand is not sufficient for adjudication. A review of the claims file reveals March and December 2001 x- rays by VA Medical Center Baltimore showing mild degenerative arthritis of the left knee. The examiner, though he states he reviewed the file, failed to address this evidence. The August 2006 MRI he cited was taken in connection with a preoperative work-up for meniscal repair surgery, and discusses solely the soft tissue structures of the knee. Silence regarding degenerative bony changes cannot be considered definitive in light of the contradictory evidence of arthritis in the record. Examination is required to resolve the appropriate diagnosis of the left knee. Moreover, in light of the diagnosis of any current left knee disability, an opinion is required regarding its relationship to service. A review of service medical records shows no treatment or complaint of problems with either knee during active duty service. The VA examiner appears, however, to have accepted the veteran's report of "wear and tear" trauma from duty aboard ship in opining as to the connection between right knee arthritis and service; there is no specific trauma to the right knee shown or alleged. The examiner must therefore address the impact of such trauma on the current left knee disability. Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for a VA Joints examination. The claims folder must be reviewed in connection with the examination. All tests deemed appropriate by the examiner should be performed, but an x-ray of the left knee is required. The examiner should determine all current diagnoses applicable to the left knee, and should offer an opinion as to whether any current condition is at least as likely as not related to trauma or injury in service. A complete rationale for all opinions expressed and conclusions reached is required. 2. The RO should then review the claims file to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated. The RO should then readjudicate the claim on appeal. If the benefit sought remains denied, the RO should issue an appropriate supplemental statement of the case. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).