Citation Nr: 1301313	
Decision Date: 01/14/13    Archive Date: 01/23/13

DOCKET NO. 09-08 378	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to service connection for a left groin disability.

2. Entitlement to service connection for a left knee disability.

3. Entitlement to service connection for tinnitus.

4. Entitlement to service connection for bilateral hearing loss disability.

5. Entitlement to an initial evaluation in excess of 10 percent for sinusitis.

6. Entitlement to a higher initial evaluation for a post-operative right knee disorder, assigned a noncompensable rating October 1, 2007, to November 11, 2008, and a 10 percent evaluation thereafter. 



REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

D. Schechter, Counsel


INTRODUCTION

The Veteran served on active military duty from September 1987 to September 2007.

The appeal comes before the Board of Veterans' Appeals (Board) from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. 

The Veteran by a May 2009 submission requested a hearing before a Decision Review Officer (DRO) at the RO. However, by a June 2009 submission signed by his authorized representative, the Veteran "waive[d]" that hearing request, expressing satisfaction with VA examinations to be conducted in its stead. Hence, the request for a hearing has been withdrawn. 38 C.F.R. § 20.702(e) (2012).

The issues of entitlement to service connection for a left knee disability and entitlement to a higher initial evaluation for a right knee disorder are addressed in the REMAND that follows the ORDER section of this decision.






FINDINGS OF FACT

1. No disability of the left groin has been present during the period of the claim.

2. No hearing loss disability in either ear has been present during the period of the claim.

3. The Veteran's tinnitus is etiologically related to his service. 

4. Throughout the period of the claim, the Veteran has experienced more than three but not more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain and purulent discharge or crusting. 

5. Throughout the period of the claim, the Veteran has not experienced Veteran three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment. 

6. The Veteran's sinusitis has not resulted in radical surgery with chronic osteomyelitis, and has not been manifested by near-constant symptoms of headaches, pain, tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 


CONCLUSIONS OF LAW

1. The criteria for service connection for a left groin disability are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).

2. The criteria for service connection for bilateral hearing loss disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012).

3. The criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).

4. For the entire rating period beginning October 1, 2007 the criteria for a 10 percent rating, but no more, for sinusitis have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.97, Diagnostic Code 6513 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  

They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

As explained below, the evidence currently of record is sufficient to establish his claim for service connection for tinnitus.  Therefore, no further development is required before the Board decides that claim.  

With respect to the other issues decided herein, the record reflects that the Veteran was provided all required notice in a letter sent in November 2007, prior to the initial adjudication of the claims.  

The record also reflects that the Veteran's service treatment records have been obtained and the Veteran has provided copies of pertinent private records.  Neither the Veteran nor his representative has identified any outstanding, exiting records that could be obtained to substantiate the claims.  The Board is also unaware of any such evidence.  

In addition, the Veteran was afforded a VA general examination for compensation purposes in December 2007, as well as more specific examinations subsequently, including an official audiology examination in January 2008. The December 2007 VA general examiner and the January 2008 audiology examiner addressed questions of current disability as well as etiology. Because the claims for service connection for bilateral hearing loss and left groin disability are herein denied based on the absence of disability as defined by regulation, in the case of bilateral hearing loss, and the absence of findings other than pain in the case of a left groin disability, and because these medical findings were made with due consideration of past records, the Veteran's medical and self-reported lay history, and clinical findings, the Board finds the reports of these medical examinations adequate for purposes of adjudicating the claims for service connection for bilateral hearing loss and a left groin disability. The December 2007 and January 2008 examinations sufficiently addressed, to the extent required for the Board's adjudication, the medical questions of diagnosis or causation as raised in this case for the Veteran's claimed bilateral hearing loss and left groin disability. The examiners supported their conclusions with analysis based on relevant evidence presented in this case, to include based on review of the record, inclusive of past examination and clinical findings and lay statements, and clinical examination. 

To address the Veteran's claim for a higher initial evaluation for sinusitis, the Veteran was afforded a VA general examination for compensation purpose in December 2007 as well as a further examination in July 2009 specifically to address his sinusitis. The Board finds that the reports of these examinations, taken together with the other evidence of record, adequately address the nature of the sinusitis to allow for the Board's adjudication of the claim for higher initial ratings for sinusitis. The examiners provided sufficient detail and supported their conclusion with analyses fully supported by review of the evidence presented. Further, the evidence considered was sufficient and encompassed the evidence of record. The Board concludes that no further examination is required.


Accordingly, the Board will address the merits of the claims.

II. Evidentiary Considerations

While medical evidence may be required to address questions of diagnosis or causation specifically requiring medical expertise, lay statements may serve to support a claim for service connection, or a claim for increased evaluation, by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability which may reasonably be observed by laypersons. See 38 C.F.R. § 3.303(a) ; Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009) ("in some cases, lay evidence will be competent and credible evidence of etiology"). 

It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). The Board cannot make its own independent medical determination, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans; Rucker v. Brown, 10 Vet. App. 67, 74 (1997). 

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994), distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Additionally, a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993).

The Federal Circuit Court has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a disability when (1) a layperson is competent to identify the medical disability, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). 

III. General Laws and Regulations Governing Claims for Service Connection

Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 

With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the disability noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b)  

If a disability noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) . Service connection may also 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) . A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.


IV. Claim for Service Connection for a Left Groin Disability

The Veteran contends that he has a disability of the left groin which began following an in-service vasectomy. 

Service records reflect the Veteran's complaints of some left groin pain, but without clinicians finding any underlying pathology. A September 2006 treatment record notes that a visit was for a possible hernia. Tests and scans were administered, including TSH screening, metabolic panels, urinalysis, and abdominal X-rays. These identified no pathology. A treating clinician stated, "No problems were found."

The Veteran was afforded a VA examination in December 2007, and the examiner noted the Veteran's reported history of having intermittent left groin pain since a vasectomy in service. The examiner also noted the Veteran's history of seeking medical care in service for this groin pain on more than one occasion, with no finding of an underlying pathology causative of the pain. Upon current clinical examination, the VA examiner similarly found no cause for the reported intermittent pain. No hernia was detected. The examiner assessed that the Veteran was normal upon examination (with respect to the left groin), and noted that the intermittent groin pain did not result in any significant occupational effect or effect on activities of daily living. The examiner simply assessed post-operative vasectomy, and did not express any belief that this scrotal surgery could have resulted in a pain within the groin itself. 

The Veteran has presented no medical evidence to support the presence of any pathology underlying his reported groin pain, and none is otherwise shown in the record. No in-service or post-service clinician has identified any such pathology. Mere pain, alone, without a diagnosed or identifiable underlying malady or disability, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). In the absence of current disability to support the claim, the claim for service connection for a left groin disability must be denied. 

While the Board has considered the Veteran's assertions of groin pain, and while the Veteran is competent to address the presence of such symptoms, the reported pain symptoms nonetheless fail to support the presence of a disease or injury resulting in the reported pain.  As discussed above, the medical evidence shows that no pathology accounting for the reported pain has been found. The Veteran himself, as a layperson, is not competent to establish the presence of medical pathology underlying his groin pain, as that is a medical question requiring medical expertise, not one subject to lay observation. 

Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 

V. Claims for Service Connection for Hearing Loss Disability and Tinnitus

The Veteran contends, in effect, that he developed hearing loss and tinnitus in the course of his duties as a jet engine mechanic over many years in service, as well as due to other in-service noise exposures. The Veteran's service records substantiate his assertions concerning his active service and associated noise exposures, with records of precautionary hearing conservation reviews due to service assignments associated with excess noise exposure. 

The threshold for normal hearing is from 0 to 20 decibels (dB) with higher thresholds indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 hertz is 40 decibels (dB) or greater, or where the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 hertz are 26 dB or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

The official audiology examination afforded the Veteran in January 2008 for VA compensation purposes included audiometric testing. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ




500
1000
2000
3000
4000
Average
1000 - 4000
RIGHT
20
20
15
15
30
20
LEFT
20
15
20
20
15
17

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear.

These findings are reasonably consistent with in-service audiometric examination findings, with those in-service examinations similarly not resulting in auditory thresholds meeting 38 C.F.R. § 3.385 criteria for hearing loss disability, and generally showing lower auditory threshold than those found in January 2008. Speech recognition testing using the Maryland CNC list is not indicated in service records.

Accordingly, the Board must conclude that service connection is not warranted for bilateral hearing loss disability.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply.

Regarding tinnitus, the Board notes that the Veteran's claim for service connection for this disability was received in October 2007, the month following his discharge from service.  At the January 2008 VA examination, he reported that he had had persistent tinnitus since approximately 1993.  The examiner diagnosed tinnitus and attributed to the Veteran's hearing loss.  Therefore, the Board concludes that the Veteran's tinnitus originated during his active service.

IV. Claim for Higher Initial Ratings for Sinusitis

The Veteran contends, in effect, that his sinusitis warrants higher ratings than those assigned.

Disability ratings are based upon schedular requirements that reflect the average impairment of earning capacity occasioned by the state of a disorder. 38 U.S.C.A. § 1155. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In all cases, the Board attempts to determine the extent to which the Veteran's disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 ; 38 C.F.R. §§ 4.1 , 4.10. In determining the level of impairment, the disability must be considered in the context of the entire recorded history. 38 C.F.R. § 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 

Where there is a question as to which of two separate ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 

The Veteran's service-connected sinusitis is evaluated under the code for chronic maxillary sinusitis, Diagnostic Code 6513, with the General Rating Formula for Sinusitis applicable. This general code also encompasses the other rating codes pertaining to sinus disorders and applies in all circumstances in which VA is to rate the severity of such disorders, no matter the particular diagnosis. Under the General Rating Formula, a 10 percent rating is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (four to six weeks) of antibiotic treatment, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is assigned for sinusitis manifested by three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or by more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Finally, a maximum 50 percent rating is awarded if the sinusitis has resulted in radical surgery with chronic osteomyelitis, or is manifested by near constant symptoms of headaches, pain, tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, Diagnostic Codes 6510-6514 (2012). 

An incapacitating episode of sinusitis is defined as one requiring bed rest and treatment by a physician. 38 C.F.R. § 4.97 (2012).

The Veteran has been afforded a 10 percent evaluation for his sinusitis based on the presence of his self-reported recurrent sinus infections five to six times per year. This is consistent with both examination and treatment findings of sinus congestion and recurrent sinus infection with characteristic headaches, pain, and discharge or crusting. However, the record does not reflect and the Veteran has not alleged still more frequent sinus infections, or multiple sinus infections yearly requiring prolonged (four weeks or longer) antibiotic treatment, or post-surgical sinusitis with chronic osteomyelitis, or near-constant sinusitis symptoms, as would be required for the next higher 30 or 50 percent disability ratings under the general rating formula for sinusitis. 38 C.F.R. § 4.97, Diagnostic Code 6513. 

The Board accordingly finds that for the entire initial rating period beginning from the October 1, 2007, date of service connection for sinusitis up to the present, the evidence preponderates against the Veteran's sinusitis warranting a higher disability rating than 10 percent. Both the Veteran's assertions and the objective medical evidence and the balance of evidence of record are in accord as to the absence of evidence supportive of such a higher 30 or 50 percent rating. Due to such accord, with the Veteran not having made assertions consistent with disability warranting such higher ratings, questions of the Veteran's credibility with regard to his claim need not be considered.

The Board does find that a 10 percent disability rating is also warranted for the initial rating period from October 1, 2007, through November 11, 2008, as well as subsequent to that interval, and hence finds that an evaluation of 10 percent is warranted for the entirety of the initial rating period. Service and post service treatment records as well as VA examination records in December 2007 and July 2009 are reasonably consistent in identifying, whether by clinical evaluation or by review of past clinical records, an ongoing clinical picture of fairly frequent, recurrent sinus infections with associated impairing symptoms such as facial pain and headaches, at times requiring brief antibiotic treatment. This recurrent disability picture with diagnosed sinusitis dates for many years prior to the Veteran's service separation, and appears consistent with the picture of such recurrences post service. 

As the Veteran informed at the December 2007 examination, the disability has consisted of episodes of congestion and drainage five to six times per year lasting from two weeks to a month each, treated with antibiotics for 10 days on each occasion. The Board accepts this lay narrative provided by the Veteran at the December 2007 examination and at the subsequent July 2009 examination, as credible and quite consistent with the weight of the clinical evidence. 

The Board does not ascribe much weight to the conclusion of the nurse practitioner who conducted the December 2007 examination, that these episodes did not have any significant occupational effects. The Board, as part of its adjudicative responsibilities, may reject this medical opinion. Evans v. West, 12 Vet. App. 22, 30 (1998). Rather, the Board finds that the rating criteria adequately ascribe a 10 percent disability rating to these recurrent symptoms of disability. 38 C.F.R. § 4.97, Diagnostic Code 6513. 

Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted more than a 10 percent rating.  See Fenderson v. West, 12 Vet. App. 119 (1999).

The Board has considered whether this claim should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration.  In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).

In this case, the manifestations of the disability are contemplated by the schedular criteria.  Therefore, referral of the claim for extra-schedular consideration is not in order.



ORDER

Service connection for a left groin disability is denied. 

Service connection for bilateral hearing loss disability is denied. 

Service connection for tinnitus is granted. 

The Board having determined that the Veteran's sinusitis warrants a 10 percent rating, but not higher, throughout the initial rating period, the benefit sought on appeal is granted to this extent and subject to the criteria applicable to the payment of monetary benefits. 


REMAND

The Veteran contends, in effect, that he has chronic disorders of the left and right knees manifested by frequently recurring pain which began in service.  For the reasons discussed below, the Board has determine that a remand of these claims for another VA examination is required.

At a July 2009 VA examination of the knees for compensation purposes, the examiner noted the Veteran's report that an MRI of the left knee in 2007 was negative, but the July 2009 examiner apparently did not review the MRI report. In fact, the MRI report from March 2007 reflects some positive findings, including small synovial joint effusion and an approximately 1.2 cm posteromedial ganglion or synovial cyst. Records since that MRI do not indicate whether these abnormalities have persisted. No new scans of the left knee were obtained for the July 2009 examination, with only clinical examination conducted. The July 2009 VA examiner noted that the last MRI of the right knee was in 2005. 

The July 2009 examiner also noted the Veteran's complaint of pain in the left knee three to four days per week with a pain intensity of 4 to 5 out of 10, and the Veteran's report of pain onset in the left knee in 2007 with no particular causal injury; and his complaint of pain in the right knee four to five days per week with an intensity of 6 out of 10. The July 2009 VA examiner assessed a normal left knee examination, and assessed a normal right knee examination "today" status post arthroscopy of the right knee for a torn meniscus in 2005.

The July 2009 examiner failed to address what might be causing the complained-of pain in either knee, and also did not examine the knees when they were symptomatic. The examiner noted that there was no pain upon any manipulation of the knees and upon knee movement testing, and hence the knees were apparently not experiencing pain on the day of examination. 

The July 2009 examiner also appears not to have adequately reviewed the Veteran's right knee medical history. While the examiner noted past surgery of the knee, the examiner failed to note the findings upon that surgery. Treatment records reflect that chondroplasty of the right knee was performed in December 2005, with correction of synovialis. The July 2009 report fails to reflect whether residuals of this particular surgery would include any disability to which the Veteran's pain symptoms might be attributed.
 
The Board does not find indication in the record that the Veteran lacks credibility in his assertions of persistent pain symptoms in the knees, and hence the Board is inclined to suspect that some disability of each knee is present resulting in the complained-of pain, consistent with a history of therapeutic care of the knees in service with intervals of physical therapy. 

The Veteran also reported at the July 2009 examination that he took 400 mg Motrin twice daily for his knees, and reported that this helped the knees. Service records reflect prior prescribed Motrin for the Veteran's knees. (A March 2007 service treatment record shows a diagnosis of patellofemoral syndrome of the right knee status post knee reconstruction in December 2005, and that the medical practitioner prescribed Motrin 800 mg.) The examiner failed to address whether current medications may be masking or limiting findings of current disability. 

Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions:

1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims.

2. Then, afford the Veteran an examination by a physician with sufficient expertise to determine the nature and etiology of any left knee disability present during the period of the claim and the extent of the Veteran's service-connected right knee disability.  The examination should be conducted by a physician other than the examiner who conducted the July 2009 VA examination of the Veteran's knees. The claims file and any pertinent evidence in Virtual VA that is not included in the claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. The examiner should do the following: 

The examiner should identify each left knee disorder present during the period of the claim.  With respect to each such disorder, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder originated during the Veteran's active service or is otherwise etiologically to his active service.

With respect to the Veteran's service-connected right knee disability, the RO or the AMC should ensure that the examiner provides all information required for rating purposes.

The rationale for all opinions expressed must also be provided.

3.  Undertake any other indicated development.

4. Thereafter, readjudicate the remanded claims. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. 

By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This REMAND must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the Court 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).



______________________________________________
Shane A. Durkin 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs