Citation Nr: 1305100 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 10-42 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for arthritis of the right knee. 2. Entitlement to service connection for arthritis of the left knee. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from December 1973 to December 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In August 2011, the Veteran testified in a Board hearing at the RO. A transcript of the hearing has been included in the claims file. The Board notes that it has reviewed the Veteran's claims file, to include documents of record that have been included in his virtual VA folder. Evidence has been added to the record since the statement of the case (SOC) issued in this matter in July 2010. During his Board hearing on August 9, 2011, the Veteran submitted into the record VA treatment records dated in 2011. The Veteran also submitted a waiver of RO consideration. 38 C.F.R. §§ 19.31, 20.1304(c) (2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran is currently service connected for right and left knee disabilities. In the right knee, he is service connected for status post lateral meniscectomy with post traumatic chondrocalcinosis with effusion. In the left knee, he is service connected for synovitis due to the right knee disorder. He asserts in the claim on appeal that he has arthritis in each knee that is secondary to his service-connected knee disabilities. 38 C.F.R. § 3.310 (2012). The relevant medical evidence of record consists of VA treatment records and VA compensation examination reports dated in October 2003, October 2004, October 2008, and March 2009. This evidence clearly indicates that the Veteran has right knee arthritis. But the evidence is not clear regarding whether the right knee arthritis is secondary to the service-connected knee disorders. Also, the evidence is not clear regarding whether the Veteran has left knee arthritis. The October 2003 report notes synovitis in the left knee. The October 2004 report notes posttraumatic arthritis in the right knee. These reports indicate that the Veteran did not have arthritis in his left knee. The October 2008 examiner noted osteoarthritis in the right knee, and noted degenerative joint disease in the left knee. The examiner opined that the right knee arthritis was likely not related to the service-connected right knee disorder because, "there is no evidence of right knee chondrocalcinosis/pseudogout on available evidence." The examiner did not explain this opinion. Further, the examiner did not offer an opinion regarding the etiology of the left knee degenerative joint disease. In the March 2009 report, the examiner who conducted the October 2008 examination solely addressed the Veteran's left knee. The examiner changed his opinion, stating that the Veteran did not have left knee arthritis, but did have left knee synovitis. VA treatment records dated prior to the March 2009 examination indicate arthritis in the right knee, and synovitis in the left knee. However, treatment records dated since then indicate that the Veteran may have arthritis in his left knee. Certain of these records refer to knee arthritis generally. This reference, coupled with the finding of degenerative changes in the October 2008 VA report, raises the possibility that the Veteran currently has left knee arthritis. The Veteran's lay assertions that he has left knee arthritis also reinforces this possibility. Further, the Board notes a comment in a March 2011 treatment record which challenges the October 2008 opinion regarding etiology of the right knee arthritis, and reinforces the Veteran's claim that his right knee arthritis relates to his service-connected right knee disorder. Specifically, the record states "OA knee ... secondary to meniscectomy in the past." Again, the record clearly demonstrates that the Veteran has arthritis in his right knee. But the record is not clear regarding whether the Veteran has arthritis in his left knee. And the record does not contain a clear medical opinion, based on a review of the claims file, on an assessment of the Veteran, and on a clear explanation, regarding whether the documented right knee arthritis relates to the service-connected right knee disability. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated). VA's duty to assist includes a duty to provide a medical examination or to obtain a medical opinion where it is deemed necessary to make a decision on the claims. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). In a claim for service connection, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits still triggers the duty to assist if it indicates that the Veteran's condition may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006) (38 C.F.R. § 3.159(c)(4) presents a low threshold for the requirement that evidence indicates that the claimed disability may be associated with in-service injuries for the purposes of a VA examination). As such, the Board finds a new VA compensation examination into the Veteran's claims warranted here. A VA examiner should, based on a review of the claims file and an examination of the Veteran, indicate whether the Veteran has current knee arthritis, and whether such disorders relate either to service or to the service-connected knee disorders. 38 C.F.R. §§ 3.303, 3.310 (2012). In addition, as the Veteran receives treatment through VA, any additional VA treatment records dating from July 2010 should be obtained on remand. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record). In addition, while records dating from February 2003 to October 2003 are of record as are records dating from December 2007 to July 2010, records dating from October 2003 to December 2007 have not been obtained. In addition, a February 2003 x-ray report to which the October 2003 VA examiner referred is not of record. These documents should be obtained on remand. In addition, the Veteran testified during the Board hearing that he was seen at the Joint Disease Center and that he would attempt to submit the records after the hearing. As only VA records dating from March to June 2011 were submitted, the Veteran should be asked to either submit the private records or authorize VA to attempt to obtain them. The claims are remanded for the following: 1. Obtain VA treatment records as follows: a. a VA x-ray report of the right knee dated in February 2003; b. VA treatment records dating from October 2003 to December 2007; and c. VA treatment records dating from July 2010. 2. Request that the Veteran submit or authorize the release of any private medical records that are relevant to his claim including those from the Joint Disease Center. If, after making reasonable efforts to obtain named records the AMC is unable to secure same, the AMC must notify the Veteran 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; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. After the above development is completed, schedule the Veteran for a VA examination of his knees. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The claims folder and a copy of this remand must be made available and reviewed by the examiner in conjunction with the examination. The examiner should provide a complete rationale for all conclusions reached. (a) The examiner should first determine whether the Veteran has arthritis in the left knee. The claims file clearly indicates right knee arthritis, but is not clear regarding whether the Veteran has left knee arthritis. (b) The examiner should then address whether it is at least as likely as not (a probability of 50 percent or greater) that any knee arthritis began in or is related to active service. In that regard, the examiner's attention is directed to service treatment records showing that the Veteran injured his right knee during service. Please provide a complete explanation for the opinion. (c) The examiner should address whether it is at least as likely as not that any knee arthritis is proximately due to or the result of the Veteran's service-connected knee disorders. The Veteran is service-connected for right knee status post lateral meniscectomy with posttraumatic chondrocalcinosis with effusion and synovitis of the left knee. Please provide a complete explanation for the opinion. (d) The examiner should address whether it is at least as likely as not that any knee arthritis is aggravated (i.e., worsened) beyond the natural progress by the Veteran's service-connected knee disorders. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's knee arthritis found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected knee disabilities. Please provide a complete explanation for the opinion. In providing the opinions, the examiner's attention is drawn to the October 2003 VA examiner's report that a February 2003 x-ray of the right knee showed chondrocalcinosis and moderate effusion. A VA medical record dated in April 2008 includes a diagnosis of gout, for which the Veteran was denied service connection by way of the rating decision on appeal. The October 2008 VA examiner determined that the right knee arthritis was less likely than not secondary to the service injury as there is no evidence of right knee chondrocalcinosis / pseudogout. He also determined that the Veteran has left knee osteoarthritis although the left knee x-ray report indicated the left knee was normal. An April 2010 VA medical record includes a diagnosis of osteoarthritis of the right knee probably secondary to meniscectomy in the past, however, an explanation for the opinion was not provided. 4. After ensuring the examination report is adequate and undertaking any additional development action that is deemed warranted, readjudicate the claims. If a claim remains denied, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case 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). These claims 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. 2012). _________________________________________________ S.S. TOTH 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) (2012).