Citation Nr: 1306227 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 09-25 424 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a right knee disability, to include Osgood-Schlatter's disease. 2. Entitlement to a compensable disability evaluation for allergic rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. R. Mullins, Associate Counsel INTRODUCTION The Veteran had active service from September 1992 to October 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, declining to reopen the Veteran's claim of entitlement to service connection for a right knee disability and continuing the noncompensable disability evaluation for the Veteran's service-connected allergic rhinitis. The claim of entitlement to service connection for a right knee disability was reopened by the Board in May 2011 and the issues currently on appeal were remanded at this time for further evidentiary development. The Veteran testified at a hearing before the undersigned Veterans Law Judge (Scholz) at the RO in Nashville, Tennessee in March 2011. A written transcript of this hearing has been prepared and incorporated into the evidence of record. The Veteran also provided testimony before the undersigned Veterans Law Judge (Singleton) at the RO in Nashville, Tennessee in March 2012. The Veteran was notified in August 2012 that the Board was unable to produce a written transcript of this hearing, however. He was told to respond to this notice within 30 days if he desired another hearing. Otherwise, the Board would assume that the Veteran did not desire another hearing and it would proceed with his claim. To date, the Board has received no notification from the Veteran requesting a new hearing, and as such, it is assumed that he does not desire a new hearing. As in this case, when a veteran has had a personal hearing before two separate Veterans Law Judges during the appeal and these hearings covered one or more common issues, a third Veterans Law Judge is assigned to the panel after the second Board hearing has been held and the appeal is then ready for appellate review. During his March 2012 hearing, the Veteran signed a statement indicating that he waived his right to appear at an additional hearing before a third Veterans Law Judge. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). 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 Right Knee Disability Regrettably, an additional remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This claim was previously remanded in May 2011 so that the Veteran could be scheduled for a VA examination. Among other things, the examiner was specifically asked to consider the Veteran's statements and March 2011 testimony; the December 1997 VA examination report and June 1998 addendum; private treatment records dated January and July 2007; and VA treatment records dated April and October 2008, and October and November 2009. The examiner was also asked to offer a medical opinion as to whether the Veteran's Osgood-Schlatter disease preexisted military service, and if so, whether it was permanently aggravated as a result of service. While the Veteran was afforded the requested examination in November 2011, a review of the examination report reflects no consideration or mention of the above pieces of evidence. Likewise, the examiner offered no opinion as to whether the Veteran's Osgood-Schlatter disease of the right knee preexisted military service, and if so, whether it was permanently aggravated as a result of his service. As such, further remand is necessary so that the Veteran can be provided an examination in which the above pieces of evidence are considered and discussed. See 38 U.S.C.A. § 5103(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see also Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). The previous remand contained a detailed description of the above requested evidence. To assist the examiner in identifying the proper records, the Board has again incorporated this information into the body of the remand as follows: The December 1997 VA examination report shows that the Veteran reported constant right knee pain, which became worse with any increased working of the knee joint. There was also swelling and tenderness of the right tibial tubercle, and locking of 5-6 months' duration. Upon physical examination, there was a slight limp in the Veteran's right side gait. The knee joint was normal upon physical examination. There was no tenderness over the tibial tubercle, and no instability. The diagnosis was history of Osgood-Schlatter disease of the right knee joint. The examiner found "no physical evidence of tibial tubercle tenderness or any other identifiable abnormality of the right knee." However, he noted that right knee x-rays were needed for confirmation. A June 1998 addendum shows that X-rays were normal. The Veteran was examined again; the diagnosis of Osgood-Schlatter disease was confirmed. The examiner noted that while the Veteran did have the physical examination evidence of Osgood-Schlatter disease, his symptoms were "not consistent with the findings and the usual manifestations of the condition." VA treatment records include April 2008 X-rays that show degenerative changes in the Veteran's right knee and an October 2008 MRI that shows anterior displacement of the anterior horn of the medial meniscus and small joint effusion. A January 2007 private treatment record shows that the Veteran reportedly injured his right knee in a work-related accident. He underwent an arthroscopic lateral release in July 2007. An October 2009 VA treatment record shows that the Veteran had a mild antalgic gait and wore a hinged knee brace. He was diagnosed with "right knee pain/degenerative joint disease/anterior MMT with anterior displacement." Allergic Rhinitis The Veteran also contends that he is entitled to a compensable disability evaluation for allergic rhinitis. Regrettably, additional evidentiary development is necessary on this issue before appellate review may proceed as well. This claim was remanded in May 2011 so that the Veteran could be scheduled for a VA examination. The examiner was asked to indicate whether there was greater than 50 percent obstruction of the nasal passage on both sides, or, complete obstruction of the nasal passage on one side, due to allergic rhinitis. A review of the examination report reflects that the examiner failed to respond to this question. Instead, the examiner indicated that the Veteran denied any significant nasal airway obstruction other than what might be caused by nasal drainage. The examiner then went on to conclude that there was no "significant" nasal obstruction due to allergic rhinitis. The Board is unable to construe what percentage of the Veteran's nasal passageways are in fact obstructed from the word "significant." The rating criteria require that the actual percentage of obstruction be indicated. See 38 C.F.R. § 4.97, Diagnostic Code 6522. The examiner then went on to state that "[i]f there were nasal obstruction, it would be more likely due to his septal deviation." This suggests that there is possibly some percentage of nasal obstruction, and this must be determined before appellate review may proceed. The Veteran must, therefore, be scheduled for an additional VA examination in which the percentage of nasal obstruction due to allergic rhinitis is specifically determined. See Stegall, 11 Vet. App. at 271. Also, if the examiner finds obstruction of the nasal passageways but determines that it is due to another condition, the examiner must explain in full detail how this determination was reached. Finally, the most recent record of medical treatment associated with the physical claims file or Virtual VA from the VA Medical Center (VAMC) in Memphis, Tennessee is dated November 2009. Records prepared since this time should be obtained and incorporated into the Veteran's claims file, either physically or electronically. Accordingly, the case is REMANDED for the following action: 1. Medical records prepared at the VAMC in Memphis, Tennessee since November 2009 should be obtained and incorporated into the Veteran's physical or virtual claims file. If records since this time are not available or do not exist, the Veteran should be notified of this fact and this should be documented in the claims file. 2. Schedule the Veteran a VA examination before an appropriate specialist for the purpose of determining the etiology of any right knee disability, to include Osgood-Schlatter disease, that the Veteran now has. The claim file and a copy of this remand must be made available for review in conjunction with this examination, and the examination report should reflect review of these items. The examiner is to perform all indicated tests and studies and determine all current diagnoses associated with the right knee. The examiner must then address the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that any right knee disability that the Veteran now has was manifested during, or was caused as a result of, active duty service. In formulating an opinion, the examiner must consider all of the evidence of record, including the Veteran's lay statements regarding the onset of his symptomatology and its history. The examiner must also specifically consider and discuss: the Veteran's March 2011 testimony; the December 1997 VA examination report and June 1998 addendum; private treatment records dated January and July 2007; and VA treatment records dated April and October 2008, and October and November 2009. (b) If the examiner concludes that a right knee disability did not initially manifest during active duty service, then after a review of the record, to include the service treatment records, post-service medical records, and lay statements, the examiner should opine as to whether there is clear and unmistakable evidence that a right knee disability existed prior to the Veteran's entry into active duty service? If so, is there clear and unmistakable evidence that any pre-existing right knee disability was not aggravated (permanently worsened) during active duty service? Is there clear and unmistakable evidence that any aggravation (permanent worsening) of a pre-existing right knee disability was due to the natural progression of that disability? The examiner should note that "clear and unmistakable evidence" means that the evidence cannot be misinterpreted and misunderstood, i.e., it is undebatable. The examiner should note that "aggravation" is defined as a permanent worsening of the underlying condition beyond its natural progress, versus temporary or intermittent flare-ups of symptoms. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation and identify that aspect of the disability which is due to aggravation. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the incurrence of his current right knee disability as well as the continuity of symptomatology. All opinions expressed should be accompanied by supporting rationale. 3. The Veteran should also be scheduled for a VA examination before an appropriate specialist to determine the current severity of his allergic rhinitis. The claims file and a copy of this remand must be made available for review in conjunction with this examination, and the examination report should reflect review of these items. The examiner is to perform all indicated tests and studies and describe in detail all symptomatology associated with this condition. In addition, the examiner must expressly answer the following questions: (a) Is the Veteran's allergic rhinitis manifested by polyps? (b) Is there greater than 50-percent obstruction of the nasal passage on both sides, due to allergic rhinitis? (c) Is there complete obstruction of the nasal passage on either side, due to allergic rhinitis? If the examiner finds objective evidence of nasal obstruction, but relates this obstruction to another disability (such as a deviated septum), the examiner should provide a full discussion and complete rationale for how this determination was made. 4. The agency of original jurisdiction (AOJ) should then carefully review the medical opinions obtained to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, the AOJ should return the case to the examiner for completion of the inquiry. 5. The AOJ should then readjudicate the claims on appeal in light of all of the evidence of record. If an issue remains denied, the AOJ should provide the Veteran a supplemental statement of the case as to the issue on appeal, and afford him a reasonable period of time within which to respond thereto. 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). (CONTINUED ON NEXT PAGE) 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. 2012). ____________________________ ____________________________ RONALD W. SCHOLZ TANYA A. SMITH Veterans Law Judge, Acting Veterans Law Judge, Board of Veterans' Appeals Board of Veterans' Appeals ____________________________ DEBORAH W. SINGLETON 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).