Citation Nr: 1110779	
Decision Date: 03/18/11    Archive Date: 03/30/11

DOCKET NO.  07-23 284	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for methicillin resistant staphylococcus aureus.  

2.  Entitlement to service connection for a left knee disorder, to include as secondary to a service-connected left ankle disorder.

3.  Entitlement to service connection for a right knee disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Veteran and his spouse


ATTORNEY FOR THE BOARD

S. Grabia, Counsel


INTRODUCTION

The Veteran served on active duty from March 1999 to October 2006.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  The Veteran testified before the undersigned Acting Veterans Law Judge at a Travel Board hearing in July 2010.  A transcript of this proceeding has been associated with the claims file.  

The issues of entitlement to service connection for a right knee disorder and for a left knee disorder, to include as secondary to a left ankle disorder, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

In July 2010, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issue of entitlement to service connection for methicillin resistant staphylococcus aureus (MRSA).


CONCLUSION OF LAW

The criteria for withdrawal of the substantive appeal by the Veteran for the issue of entitlement to service connection for MRSA have been met.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2010).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 C.F.R. § 7105.  A substantive appeal may be withdrawn in record at a hearing, at any time before the Board promulgates a decision.  38 C.F.R. § 20.204(b).  Withdrawal may be made by the veteran or his authorized representative.  38 C.F.R. § 20.204(a).

By a February 2007 rating decision, the RO denied service connection for MRSA.  In April 2007, the Veteran filed a notice of disagreement.  In June 2007, the RO issued a statement of the case.  In July 2007, the Veteran perfected the appeal.  38 C.F.R. § 20.202.  At the July 2010 Board hearing, the Veteran orally withdrew the appeal as to that issue.  This is sufficient to withdraw the issue on appeal.  38 C.F.R. § 20.204(b)(1).  As a result, no allegation of error of fact or law remains before the Board for consideration with regard to this issue.  38 C.F.R. § 20.204(c).  Accordingly, the Board does not have jurisdiction to review the appeal as to the issue of entitlement to service connection for MRSA.


ORDER

The issue of entitlement to service connection for MRSA is withdrawn.  


REMAND

The Veteran contends that his right and knee disorders are due to active service.  He also contends that his left knee disorder was caused or aggravated by his service-connected left ankle disability.  The Board finds that remand is required in order to obtain adequate examinations.  

Under the Veterans Claims Assistance Act of 2000, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010).  If 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).  An examination should address the appropriate theories of entitlement.  Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007).  Additionally, adequate examinations require that the examiner addresses lay testimony regarding in-service injuries and continuity of symptomatology and that the examiner is informed of the relevant facts in rendering a medical opinion.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008); Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007).

Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2010).  In order to establish service connection for a claimed disorder, the following must be shown:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Additionally, service connection may be granted where a disability is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  The Veteran is service-connected for a left ankle disorder - status-post Achilles osteophytes of the calcaneus.  

Service treatment records (STRs) indicate a right knee injury in January 2005 and a left ankle surgery in January 2006.  In March and April 2007 lay statements, a co-worker and a family member noted that the Veteran limped since service discharge and had pain in his lower extremities.  In an October 2008 lay statement, the Veteran stated that he did not have left knee problems until after his left ankle surgery.  In a May 2009 lay statement, a relative of the Veteran noted that since service discharge, he limped and was in pain.  In other lay statements of record, the Veteran has asserted that his right and left knee pain have continued since service discharge.

A February 2007 VA examination was conducted upon a review of the claims file.  The examiner diagnosed normal right knee, noting that February 2005 bilateral knee x-ray reports were negative.  The examiner diagnosed left knee patella tendonitis.  A January 2009 VA examination was conducted without the claims file.  The examiner diagnosed left knee chondromalacia.  The examiner also diagnosed right knee sprain, noting that magnetic resonance imaging (MRI) had shown old trauma to the medial collateral ligament (MCL), possible tear of the meniscofemoral ligament, abnormal anterior cruciate ligament (ACL), and minimal degenerative changes.  In an April 2009 VA addendum based upon a review of the claims file, the examiner opined that the right knee patella tendonitis and MCL strain resolved with treatment during service, noting that there was no right knee disorder upon service discharge.  The examiner opined that the left knee tendonitis was not due to service because there was no left knee treatment or injuries in the STRs.  A September 2007 VA MRI report indicated left knee chondromalacia.  A March 2008 x-ray report noted normal bilateral knees.  A March 2008 MRI of the left knee showed chondromalacia.  A November 2008 x-ray report regarding the right knee was negative.  A January 2009 right knee MRI report noted chronic tear of the meniscofemoral ligament and minimal degenerative changes.  

Upon a review of the evidence of record, the Board finds that the examinations are inadequate.  First, no examiner has provided an opinion regarding the Veteran's claim that his left knee disorder is caused or aggravated by his service-connected left ankle disorder.  See Stefl, 21 Vet. App. at 123-24.  Second, the April 2009 examiner did not address the Veteran's competent and credible lay statements of left knee pain during service after the left ankle surgery and continuous bilateral knee pain after service discharge, appeared to require documentation of a left knee injury during service, and failed to address the January 2009 MRI showing an old trauma to the MCL when finding that the right knee injury resolved during service.  See Nieves-Rodriguez, 22 Vet. App. at 302-04; Dalton, 21 Vet. App. at 39-40.  Accordingly, remand is required to obtain an adequate examination. 

Accordingly, the case is REMANDED for the following actions:

1.  Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any medical records not already of record.  Subsequently, and after securing the proper authorizations where necessary, the AMC must make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file.  All information obtained must be made part of the file.  All attempts to secure this evidence must be documented in the claims file by the AMC.  If, after making reasonable efforts to obtain named records the AMC is unable to secure same, the AMC must notify the Veteran and his representative and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; and (c) describe any further action to be taken by the AMC with respect to the claim.  The Veteran must then be given an opportunity to respond.

2.  Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment.  If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file.

3.  Provide the Veteran with an appropriate examination to determine the etiology of his right and left knee disorders.  The claims folder, including a copy of this remand, must be made available to the examiner.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.  The rationale for all opinions expressed must be provided.  If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a rationale provided for that conclusion.  

The examiner must provide an opinion, in light of the examination findings and the service and post-service evidence of record, regarding whether it is at least as likely as not (a 50 percent or higher degree of probability) that the Veteran's left knee patellar tendonitis and left knee chondromalacia are 1) caused or aggravated by the Veteran's military service, to include the in-service left ankle surgery, and 2) caused or aggravated by the Veteran's current left ankle disability.  The examiner must specifically address the Veteran's credible assertions of a left knee pain during service and since service discharge.  The examiner must also address the lay statements of record indicating the Veteran walks with a limp and has lower extremity pain.   

The examiner must provide an opinion, in light of the examination findings and the service and post-service evidence of record, regarding whether it is at least as likely as not (a 50 percent or higher degree of probability) that the Veteran's right knee chronic tear of the meniscofemoral ligament, degenerative changes, strain, and old trauma to the MCL are caused or aggravated by his military service, to include the in-service right knee injury.  The examiner must specifically address the Veteran's credible assertions of right knee pain during service and since service discharge, the lay statements of record indicating the Veteran walks with a limp and has lower extremity pain, and the significance of the finding of "old trauma" to the MCL.   

4.  Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims.  38 C.F.R. §§ 3.158, 3.655 (2010).  In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable.

5.  Review the examination report to ensure that it is in complete compliance with the directives of this remand.  If the report is deficient in any manner, the AMC must implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  

6.  After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated.  If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The Veteran and his representative have 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. 2010).



____________________________________________
K. M. MILLIKAN 
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) (2010). 



Department of Veterans Affairs