Citation Nr: 1306677 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 10-43 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for left knee patella femoral degenerative joint disease, to include as secondary to service-connected right knee disabilities. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1972 to October 1975. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin that denied service connection the claimed condition. A review of the Virtual VA paperless claims processing system revealed VA outpatient treatment records dated December 2010 to March 2012. 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Specifically, a remand is required to provide the Veteran with a new VA examination. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311(2007). An opinion is considered adequate when it is based on consideration of an appellant's prior medical history and examinations and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl, 21 Vet. App. at 124. In the absence of a sufficiently supported medical opinion, VA fails to meet its duty to assist obligations and a remand is necessary to cure this defect. See 38 C.F.R. § 3.159(c)(4) (2012). Service connection is in effect for chronic subluxation, right patella, postoperative, with synovitis, evaluated as 20 percent disabling, and degenerative joint disease of the right knee, evaluated as 10 percent disabling. Here, the Veteran has claimed that his left knee condition, consisting of pain, swelling, crepitation, kneecap going out, and flares with increased walking or standing, has been caused or worsened by his service-connected right knee conditions. He stated that the worsening is due to his compensating for the right leg when he moves. The Veteran also states that, as his right knee has worsened, so too has his left knee. A review of the Veteran's service treatment records shows that in a July 1974 entry, the Veteran was noted to have degenerative arthritis in his kneecaps. A VA examination conducted in 1976 shows that the Veteran was diagnosed with synovitis of the left patella. A review of the Veteran's VA treatment records shows that the Veteran was treated on several occasions for complaints of bilateral knee pain, with no discussion of etiology. The Veteran was administered a VA examination in October 2009, with an addendum opinion in December 2009. At the examination, the examiner noted the Veteran's complaints of pain, swelling, crepitation, kneecap going out, and flares with increased walking or standing. The examiner noted the Veteran's complaints about overcompensating for his right knee. The examiner also noted that the Veteran sustained a left patellar dislocation injury at work in 1988 and a subsequent injury to the same knee in 1989. The Veteran's symptoms were indicated to have become more progressive after that time. The examiner diagnosed the Veteran with left knee patella femoral degenerative joint disease. In the addendum opinion, the examiner opined that the Veteran's condition was neither related to military service nor caused or aggravated by his service-connected right knee condition because the 1988 and 1989 work accidents were an intervening cause that were the most likely cause of his current left knee condition. The Veteran also submitted the results of a September 2010 private examination administered by Dr. T. C. At that examination, the examiner noted the Veteran's complaints of progressive left knee pain as well as claims of overcompensating for his right knee. However, there was no mention of the 1988 or 1989 work accidents. The examiner gave an impression of possible degenerative meniscus tearing of the left knee. The examiner opined that, to a degree of medical certainty, the Veteran's right knee injury would have contributed substantially to increased wear and tear on the left knee and contributed to his mild degenerative condition. The Board finds that the October 2009 VA examination and December 2009 addendum opinion are inadequate for rating purposes. The VA examiner merely stated that the posited theories of service connection were less likely than not related because there was an intercurrent cause. However, the examiner did not sufficiently explain why this intercurrent cause particularly excluded the possibility of shared causation or aggravation from the Veteran's service-connected right knee. This inquiry becomes particularly relevant upon consideration of the September 2010 private examination, in which it is not only found that the right knee would aggravate the left knee, but that it would do so substantially. Accordingly, upon remand, the examiner must fully consider any causation or aggravation related to the Veteran's right knee disorder and sufficiently explain the opinion with a well reasoned medical explanation. See Nieves- Rodriguez, 22 Vet. App. 295; Stefl, 21 Vet. App. at 124. As this case must be remanded for the foregoing reasons, any recent VA treatment records should also be obtained. The Board observes that the Veteran has received VA treatment for his knee disorder and records of his VA care, dated since March 2012, have not been associated with the claims file. Under the law, VA must obtain these records. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2011); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After any new evidence has been associated with the claims file, the Veteran should be scheduled with an appropriate in-person examination to determine the etiology and severity of the Veteran's left knee patella femoral degenerative joint disease. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner is requested to provide an opinion, in light of the evidence in the claims file, as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left knee patella femoral degenerative joint disease was related to military service, to include possible secondary relationship to service-connected right patella post operative with synovitis. The Veteran's lay statements regarding continued complaints of symptoms should be taken into account as well as the private treatment examination conducted by Dr. T. C. in September 2010. An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). 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). _________________________________________________ WAYNE M. BRAEUER 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).