Citation Nr: 1200581 Decision Date: 01/09/12 Archive Date: 01/20/12 DOCKET NO. 08-04 795 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a bilateral patella disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant had active service in the United States Army from June 1988 to November 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Montgomery, Alabama. 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 appellant has come before the VA asking that service connection be granted for bilateral patella dislocation. The appellant has claimed that while she was on her five and one half months of active duty, she had repeated problems with her knees. She has stated that the patella in the left knee became dislocated and that the left knee condition led to problems with the right patella. Finally, she has averred that since service, she has continued to suffer from pain in both knees that she attributes to her military service. The RO has denied her claim and she has appealed to the Board for review. VA has a duty to develop the appellant's claims prior to the issuance of a decision on the merits of the claim. A review of the claims folder indicates that the RO has not obtained an opinion as to whether the claimed and purported disability is a result of the appellant's military service. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. A review of the claims folder indicates that while the appellant was on active duty she did, in fact, express complaints involving the knees. She also received treatment as a result of those complaints. For example, a September 1992 report indicates that she was suffering from right and left patellar displacement, she was told that she could not run, and she was given a permanent restrictive profile in her service medical records. This permanent restrictive profile was assigned following nearly four years of complaints involving either both knees or one knee (the left knee) (See DA Form 3349, Physical Profile, June 18, 1991, and January 21, 1992) and general complaints of pain in September 1988. Even though the service medical records clearly shows that the appellant experienced symptoms and manifestations involving both knees, a review of the claims folder indicates that the RO/AMC has not obtained a definitive diagnosis as to whether the claimed disorders began in service, were made worse in service, or were the result of an in-service injury. Such an examination has not occurred even though case law, i.e., McLendon et al, would require that such an examination be performed. Accordingly, the claim is remanded to obtain examinations to determine the nature and etiology of the appellant's left and right patella disorders. Therefore, in order to give the appellant every consideration with respect to the present appeal, it is the Board's opinion that further development of the case is necessary. This case is being returned to the RO via the AMC, and the appellant will be notified when further action on his part is required. Accordingly, this case is REMANDED for the following action: 1. The RO/AMC should provide to the appellant all notification action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106- 475, 114 Stat. 2096 (2000) concerning how to substantiate a claim for service connection. This notification must include information as to how the appellant may prevail on a claim for service connection on a secondary basis. A copy of all notification letters should be included in the claims folder for review. 2. The RO/AMC should contact the appellant and ask that she furnish signed authorizations for release to the VA of all medical health care providers who have treated the appellant for a disability of the left and right knees since her discharge from service in November 1988. Copies of the medical records, that are not already of record, should then be requested. All records obtained should be added to the claims folder. If requests for these private treatment records are not successful, the RO/AMC should inform the appellant of the nonresponse so that she will have an opportunity to obtain and submit the records herself, in keeping with her responsibility to submit evidence in support of her claim. 38 C.F.R. § 3.159(e) (2011). 3. Thereafter, the appellant should be afforded a VA orthopedic examination of the left and right knees. The claims folder should be provided to the examiner for review in conjunction with the examination and the examiner should indicate in the report that the folder was reviewed. The examiner should render an opinion as to whether it is at least as likely as not that any current left or right knee disability is related to her military service or any incident therein, to include whether any found disability of the right knee was caused by or the result of injuries that may have occurred to the appellant's left knee while she was on active duty. Specifically, the examiner must specifically comment on whether the condition she suffered from while on active duty and reported in her service medical records on September 12, 1999, June 10, 1990, June 18, 1991, January 21, 1992, and September 22, 1992, has led to the development of her current bilateral knee disability. In that regard, the examiner should also consider the appellant's reports of a continuity of symptoms involving the left and right knees since service in offering the opinion. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide a comprehensive report including rationales for all opinions and conclusions. If the examiner states that the appellant's current bilateral knee disability is not related to or was not caused by or the knee condition she suffered from while on active duty, the examiner must provide an analysis as to why this is not so. 4. The AMC/RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the report of examination. If the requested report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2011); see also Stegall v. West, 11 Vet. App. 268 (1998). 5. Thereafter, the AMC/RO should readjudicate the issue on appeal. If the benefits sought on appeal remain denied, the appellant, along with her accredited representative, should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The purpose of the examination requested in this remand is to obtain information or evidence (or both), which may be dispositive of the appeal. Therefore, the appellant is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2011) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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. 2010). _________________________________________________ C. TRUEBA 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).