Citation Nr: 1126402 Decision Date: 07/13/11 Archive Date: 07/19/11 DOCKET NO. 06-31 053 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran had active service from June 1976 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran was afforded a hearing before the Decision Review Officer (DRO) at the RO on January 25, 2007. The transcript has been associated with the claims file. 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 Reason for Remand: Inadequate VA examination. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim, and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). Pursuant to the Board's October 2010 remand, the Veteran was afforded a VA examination in November 2010. The remand directed the examiner to review the claims file and provide an opinion as to whether the Veteran's left knee disorder is causally or etiologically related to his military service. In the remand, the Board specifically pointed out that the Veteran was treated less than one month after separation from service for complaints of knee pain in September 1976 and that the Veteran was diagnosed with strains of the knees. In the November 2010 VA examination report, the examiner noted that review of the service treatment records show acute and apparently transitory episodes of left knee pain during military service with no objective clinical findings. No further notes were found throughout the remainder of active service to substantiate any chronic condition of the knee or complaints thereof. There was no record of any specific injury to the knee. His documented knee complaints did not start until 1979, 3 years after discharge. Thus, the examiner opined that it was less likely as not that the Veteran's patellofemoral syndrome was incurred in or as a result of military service. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). After reviewing the examination, the Board finds that it is inadequate upon which to base a determination as the directives of the remand were not fully addressed. See Stegall v. West, 11 Vet. App. 268 (1998). In reviewing the January 2010 VA examination report, the Board recognizes that the VA examiner opined that it was less likely as not that the Veteran's patellofemoral syndrome was incurred in or as a result of military service. However, the VA examiner did not appear to review the September 1976 post-service record wherein the Veteran complained of left knee pain less than one month after his separation from active service. Indeed, the Veteran was diagnosed with strains of the knees at that time. Thus, the Board finds that the November 2010 VA examiner's opinion is afforded little probative value as it is based on an inaccurate factual predicate, i.e., failing to take into account the September 1976 post-service record. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Consequently, the Board finds that a remand is necessary to obtain an adequate VA examination. 38 C.F.R. § 3.159(c)(4)(i). Accordingly, the case is REMANDED for the following action: 1. If possible, return the claims file to the examiner who conducted the November 2010 examination and ask him to review the claims file, specifically to include the September 1976 post-service treatment record, and provide an opinion as to whether the Veteran's current left knee disorder is at least as likely as not (50 percent likelihood or greater) related to active service. If it is not possible to return the claims file to the examiner who conducted the November 2010 examination, please schedule the Veteran for a VA examination to evaluate his claim for service connection for a left knee disorder. A copy of the claims file and this REMAND must be made available to the examiner in conjunction with the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent likelihood or greater) that the left knee disorder is causally or etiologically related to his active military service. The examiner should take note of the complaints of knee pain in the September 1976 post-service record. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2010), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. After conducting any additional development deemed necessary, the RO should readjudicate the claim. If the benefit requested on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2009). _________________________________________________ KATHLEEN K. GALLAGHER 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) (2010).