Citation Nr: 1301060 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 07-26 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a left knee disability, to include as secondary to service-connected degenerative joint disease of the right knee. 2. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the right knee. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1951 to May 1953. These matters initially came before the Board of Veterans' Appeals (Board) from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In that decision, the RO denied entitlement to service connection for a left knee disability and granted a 10 percent rating for degenerative joint disease of the right knee, effective October 24, 2005. In December 2006, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO and a transcript of that hearing has been associated with his claims folder. In an August 2007 decision, the DRO granted an increased (20 percent) rating for degenerative joint disease of the right knee, effective October 24, 2005. In his August 2007 substantive appeal (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge at the RO by videoconference. In September 2009, he withdrew his hearing request. In August 2010, the Board granted the Veteran's motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900 (c) (2012). 38 U.S.C.A. § 7107 (a)(2) (West 2002). In August 2010 the Board denied the claim of service connection for a left knee disability and the claim for a rating in excess of 20 percent for degenerative joint disease of the right knee. The Veteran appealed the Board's denials to the United States Court of Appeals for Veterans Claims (Court). In a May 2012 memorandum decision, the Court set aside the Board's August 2010 decision and remanded the case for readjudication in compliance with directives specified in the Court's decision. REMAND Once the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this case, a March 2009 VA examination report includes a diagnosis of severe osteoarthritis of the left knee. Thus, a current left knee disability has been demonstrated. Service treatment records reflect that the Veteran sustained an injury to his right leg in July 1952 when his leg was pinned against the side of a truck and that he was subsequently treated for right leg and knee problems during service. He contends that he also injured his left knee in service at the time of his documented right leg injury and that left knee symptoms have persisted since that time. Nevertheless, there is some evidence to the contrary. In the alternative, he contends that his current left knee disability is related to his service-connected right knee disability. A February 2006 VA examination report includes an opinion that the Veteran's current degenerative joint disease of the left knee was not likely ("less likely than not") related to service. This opinion was based on the fact that there was no clinical evidence that his left knee/leg was injured in service at the time that he injured his right leg. A physician who conducted an August 2007 VA examination opined that there was no evidence that the Veteran's left knee arthritis resulted from "the injury or arthritis present in the right knee." He reasoned that there was no medical evidence of any left knee injury in service and that the Veteran's degenerative joint disease was present bilaterally and likely would have been present irrespective of his injury in service. Also, medical literature indicated that osteoarthritis was not affected (initiated or advanced) by malalignment of the joint. The February 2006 opinion is inadequate because it is entirely based on a lack of objective clinical evidence of left knee problems in service and does not reflect consideration of the Veteran's reports of a left knee injury in service and knee symptoms in the years since that time. A medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). The August 2007 opinion is also inadequate because, as noted by the Court, it is limited to whether the current left knee disability was caused by the service-connected right knee disability and did not address the possibility of aggravation of left knee disability by the right knee disability. (The Court concluded that this was the case even though the examiner indicated that arthritis was not advanced by malalignment.) With respect to the claim for a rating in excess of 20 percent for degenerative joint disease of the right knee, disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2012), pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012). The Veteran was afforded a VA examination in March 2009 to determine the current severity of his service-connected right knee disability. Ranges of right knee motion were reported and it was noted that there was pain associated with the ranges of motion and that the Veteran experienced flare ups of knee symptoms. However, the Veteran was able to flex and extend his knee to 110 degrees and 0 degrees, respectively. Although the examiner noted that there were no motion changes following repetitive use, he did not note the point, if any, at which pain caused functional impairment or whether there was any additional functional impairment due to weakened movement, excess fatigability, incoordination, or flare ups. Thus, clarification is required. See Mitchell, 25 Vet. App. at 43-4; 38 C.F.R. §§ 4.40, 4.45, 4.59. VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2012); see 38 C.F.R. § 19.9 (2012). Where the Board makes a decision based on an examination report that does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Moreover, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claims, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). Evidence associated with the Veteran's claims file, including a March 1967 statement by the Veteran (VA Form 21-4138), reflects that he had been in receipt of Social Security Administration (SSA) disability benefits for an unspecified disability. The Court has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317, 1321 (2010) (there is no duty to get SSA records when there is no evidence that they are relevant). The medical records related to the SSA's disability determination have not yet been associated with the claims file and may be relevant. Accordingly, the case is REMANDED for the following action: 1. Contact the SSA and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records used to make the decision. All efforts to obtain these records must be documented in the claims file. Efforts to obtain these records should continue until they are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 2. After all efforts have been exhausted to obtain and associate with the claims file any evidence from the SSA, schedule the Veteran for a VA examination to evaluate the current severity of the service-connected right knee disability and to obtain an opinion with respect to the claim of service connection for left knee disability. All indicated tests and studies should be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review. The ranges of right knee flexion and extension shall be reported in degrees. The examiner should provide a specific opinion as to whether there is additional limitation of motion due to weakened movement, excess fatigability, incoordination, pain, or flare ups. The examiner should secondly address any loss of endurance, coordination, speed, or strength because of symptoms such as pain and equate the level of impairment caused by all such losses to an equivalent level of decreased range of motion, stated in degrees. This should be done for both flexion and extension. The examiner shall report if there is ankylosis of the right knee and, if so, the angle at which the knee is held. The examiner shall also report whether there is subluxation or instability of the right knee, and if present, provide an opinion as to its severity. The examiner shall answer all of the following questions: (a) Is it at least as likely as not (50 percent probability or more) that the Veteran's current left knee disability (any left knee disability diagnosed since October 2005) had its onset in service, is related to his reported left knee injury in service, or is otherwise the result of a disease or injury in service? (b) Is it at least as likely as not (50 percent probability or more) that the Veteran's current left knee disability (any left knee disability diagnosed since October 2005) was caused (in whole or in part) by his service-connected degenerative joint disease of the right knee? (c) Is it at least as likely as not (50 percent probability or more) that the Veteran's current left knee disability (any left knee disability diagnosed since October 2005) was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by his service-connected degenerative joint disease of the right knee? In formulating the above opinions, the examiner must acknowledge and discuss all left knee diagnoses provided since October 2005, the Veteran's reports of a left knee injury in service at the time of his documented right knee injury, and his reports of left knee symptoms in the years since service. The examiner must provide reasons for each opinion given. The examiner is advised that the Veteran is competent to report a left knee injury in service, his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. (The absence of evidence of treatment for left knee problems in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion.) If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 3. The agency of original jurisdiction (AOJ) should review the examination report to ensure that it contains the information and opinions requested in this remand and is otherwise complete. 4. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2012). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2012).