Citation Nr: 1306108 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 10-34 328 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a right knee disorder to include as secondary to service-connected bilateral plantar fasciitis. 2. Entitlement to service connection for a left knee disorder to include as secondary to service-connected bilateral plantar fasciitis. REPRESENTATION Veteran represented by: Daniel Krasnegor, Attorney ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran served on active duty from January 1992 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Board notes that the Veteran currently has an appeal for a claim for entitlement to an increased rating, in excess of 10 percent for bilateral plantar fasciitis (also diagnosed as valgus deformity with pes planus). As the Veteran has different representation for that claim, it is being addressed in a separate decision. The Veteran initially requested a video conference hearing in a February 2012 statement. She later withdrew her request in a March 2012 statement. The appeal is REMANDED to the VA RO. VA will notify the Veteran if further action is required. REMAND The Veteran contends that her right and left knee patellofemoral syndrome are related either to her active duty service or, alternatively, to her service-connected bilateral plantar fasciitis. Although the Board regrets the delay associated with this remand, further development of the record is required before the Board may render a decision with regard to these claims. Once VA provides a Veteran with a medical examination, due process requires that VA notify the veteran prior to the adjudication of the claim of any inability to obtain evidence sought, including a VA examination with medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that "[o]nce VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the [veteran] why one will not or cannot be provided"); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). Turning to the facts in the instant case, the Veteran received a VA examination of her knees in January 2009. The January 2009 examiner opined that the Veteran's bilateral patellofemoral syndrome was neither caused by nor the result of her service-connected bilateral plantar fasciitis. The examiner opined that the Veteran's bilateral plantar fasciitis had not caused an abnormal gait and therefore had not caused a problem with her knees. The Board notes that the examiner did not offer an opinion whether the Veteran's bilateral plantar fasciitis had aggravated the Veteran's bilateral patellofemoral syndrome. In April 2011, a VA Doctor of Podiatric Medicine (DPM) transcribed a phone call that had taken place with the Veteran. The DPM indicated that the Veteran had called to inform the DPM that she had been seen by a private physician regarding her knee pain. The Veteran indicated that the private physician diagnosed her with patellofemoral pain bilaterally. The transcription then reads, "This diagnosis was more likely that not caused and accelerated by untreated pes planus while [the Veteran] was in the service." This is the entirety of the transcription. While the Board acknowledges what appears to be a positive opinion regarding the relationship of the Veteran's knee condition to the Veteran's service-connected foot condition, it is unclear whether this statement represents the DPM's reasoned conclusion regarding the Veteran's condition, or merely a transcription of the Veteran's own statements. In either case, this conclusion is unsupported by a rationale and is thus not itself of adequate probative value to grant the Veteran's claims for service connection. In January 2012, a different examiner from the January 2009 examiner offered an addendum opinion (without an examination) regarding the secondary relationship between the Veteran's bilateral knee condition and her service-connected foot condition. The opinion stated that the Veteran's bilateral patellofemoral syndrome was not caused by, the result of, or aggravated by service-connected bilateral plantar fasciitis because plantar fasciitis would not alter the function of the patellofemoral complex and the Veteran's knee condition was experiencing normal progression. The Board observes that while the examiner stated that he reviewed the Veteran's claims file, the examiner did not address the above-described April 2011 notation from the VA DPM suggesting that the Veteran's bilateral knee condition was related to the Veteran's service-connected foot condition. In March 2012, the same VA examiner offered an additional addendum opinion addressing whether the Veteran's bilateral knee condition was directly related to active duty service. The VA examiner opined that the Veteran's bilateral patellofemoral syndrome was not the result of her military service. The examiner's rationale was that no diagnosis of patellofemoral syndrome was made during active duty service even though the Veteran was seen by an orthopedic surgeon and furthermore that knee swelling is not consistent with a diagnosis of patellofemoral syndrome. Additionally it was noted that the Veteran was not diagnosed with patellofemoral syndrome within one year of discharge. Upon review of this medical evidence, the Board finds that the issue of the secondary relationship, if any, between the Veteran's service-connected foot condition and her bilateral knee condition has not yet been adequately addressed. While the January 2012 examiner offered an opinion regarding both secondary causation and aggravation, he did not himself examine the Veteran, and his opinion does not address the potentially positive opinion of the April 2011 VA DPM. The Board further notes that no single examiner has examined the Veteran and then provided probative opinions as to both whether the Veteran's bilateral knee condition was directly related to service and whether the Veteran's bilateral knee condition was secondarily related to her service-connected foot condition, to include whether it was aggravated by such foot condition. To the extent that the VA DPM is unable to provide a rationale to her April 2011 opinion, the Veteran should be afforded another examination on remand. Accordingly, the case is REMANDED for the following actions: 1. Ensure that all records of which RO has notice have been obtained and either associated with the Veteran's claims file or her Virtual VA e-folder. 2. Then, contact the VA DPM (Dr. G.R.) who transcribed the above-described April 2011 telephone call with the Veteran. Dr. G.R. should be asked to review the April 2011 notation stating that "[The Veteran's knee] diagnosis was more likely that not caused and accelerated by untreated pes planus while [the Veteran] was in the service." Dr. G.R. should then indicate whether this statement was her own etiological opinion with regard to the Veteran's bilateral patellofemoral syndrome. If it was an etiological opinion, please ask her to provide a supporting rationale as to why the Veteran's bilateral patellofemoral syndrome is related to her service-connected bilateral plantar fasciitis. If Dr. G.R. is unavailable to address these questions, or if she indicates that this statement was simply a transcription of the Veteran's own statements, please proceed to the next remand directive. 3. Then, only if Dr. G.R. is unable to clarify her April 2011 statement, schedule the Veteran for a VA examination with an examiner of appropriate expertise to determine the nature, extent, and etiology of the Veteran's bilateral knee condition. All indicated tests and studies must be performed. The claims folder must be reviewed by the examiner in conjunction with the examination. Following a review of the service and post service medical records, as well as the Veteran's statements, the examiner must describe the nature of the Veteran's bilateral knee condition in detail, and offer the following opinions: a) Is it at least as likely as not (that is, a 50 percent probability or greater) the Veteran's bilateral knee condition had its onset in service or is otherwise related to service? b) Is it at least as likely as not that the Veteran's bilateral knee condition was caused by the Veteran's service-connected bilateral foot condition? c) Is it at least as likely as not that the Veteran's bilateral knee condition was aggravated (that is, permanently worsened) by the Veteran's service-connected bilateral foot condition? If the bilateral knee disability was aggravated by the Veteran's service-connected bilateral foot condition, then please state to the extent possible the baseline level of severity of the bilateral knee disability before the onset of any aggravation. A complete rationale must be provided for any opinions expressed. 4. Review the medical opinion obtained as a result of the Veteran's VA examination to ensure that all remand directives have been accomplished. If all questions posed by this remand are not answered or are not answered sufficiently, then return the case to the examiner for completion of the inquiry. See Stegall v. West, 11 Vet. App. 268 (1998). 5. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claims. If action remains adverse to the Veteran, provide the Veteran with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters that the Board has remanded. See 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 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 2002 & Supp. 2012). _________________________________________________ SARAH RICHMOND Acting 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. See 38 C.F.R. § 20.1100(b) (2012).