Citation Nr: 1308992 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 09-16 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a right knee disability as secondary to the service-connected left knee injury post-arthroscopic surgery for torn medial cartilage and anterior cruciate ligament tear (left knee disability). REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran had active service from June 1964 to April 1969 and from December 1990 to January 1991, with additional reserve service. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that denied the claim for service connection for a right knee disability. The Veteran testified at Decision Review Officer (DRO) hearings held in May 2005 and November 2009. The Board notes that in April 2005 the Veteran perfected a timely appeal of the April 2004 rating decision, and as such, there is no requirement that the Veteran submit new and material evidence as to his right knee disability claim. Thus, the Veteran's right knee claim has been characterized as styled on the title page. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for a right knee disability as secondary to the left knee disability. Specifically, in statements and at hearing the Veteran asserted that he developed his current right knee disability due to overuse of his right knee, and due to compensating for his left knee disability. Service connection for a left knee disability was established by a March 1992 rating decision. A disability may be service-connected if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2006). Moreover, when aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). A VA clinical treatment note in March 2002 recorded a diagnosis of bilateral degenerative joint disease of the knees, left greater than right. In September 2002 a clinician noted that the Veteran's gait was antalgic causing the Veteran to limp on the right side. On VA examination in July 2003, the examiner noted examination of the right knee revealed atrophy of the quadriceps. The examiner stated that on physical examination and x-ray examination he could find no explanation for the Veteran's symptoms or quadriceps atrophy of the right knee. The examiner indicated that he did not believe the Veteran's right knee problems were related to the left knee because he was not aware of any studies that showed an increase in degenerative changes in a knee secondary to prolongation of the stance phase due to pain in the contralateral knee. The amount of additional stress placed on a knee on climbing, sitting, or standing, was well within the normal range and should not cause degenerative changes. The VA examiner failed to specifically state whether the Veteran's right knee condition was aggravated by his left knee disability. Thereafter, in a March 2008 opinion report a VA physician reviewed the claims file, to include the July 2003 VA examination report, and opined that what was true in 2003 remained true in 2007, in that there were no known medical studies to confirm that arthritis in one knee would cause or aggravate arthritis in the other knee. Accordingly, the physician found that the Veteran's right knee condition was not caused or aggravated by the left knee disability. Instead, the examiner pointed out that obesity and aging would cause or aggravate knee arthritis. The Board finds that the opinion is inadequate because the examiner merely addressed whether arthritis in one knee could cause or aggravate arthritis in the other. It failed to address the Veteran's contention that his right knee disability was caused or aggravated by overuse of the right knee due to compensating for his service-connected left knee disability. Additionally, the VA physician did not address VA and private medical evidence of record that supports the Veteran's claim. In this regard the Board notes that an April 2005 bilateral knee evaluation report contained a history of overuse of the right knee due to the left knee disability, along with a diagnosis of right knee degenerative changes with early valgus deformity secondary to the left knee disability. Similarly in March 2007, a VA clinician noted increasing pain in the right knee due to favoring the left knee because of pain. Moreover, to the extent that the VA physician suggested a relationship between weight and arthritis, the opinion appears to support the Veteran's assertion that favoring the left leg would cause him to put greater weight and strain on the right knee, thereby possibly causing or aggravating the right knee disability. Finally, the examiner did not provide a sufficient rationale for the opinion rendered. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). Once VA undertakes an examination or etiological opinion, even if not required to do so, an adequate one must be produced. Barr v. Nicholson, 21 Vet. App. 303 (2007). As such, the Board finds that additional VA examination is warranted to determine whether the Veteran's right knee disability has been caused or aggravated by his service-connected left knee injury post-arthroscopic surgery for torn medial cartilage and anterior cruciate ligament tear. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, relevant ongoing medical records should also be obtained, to include any VA treatment records. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Also, the Veteran should be requested to provide any outstanding private medical records or authorize VA to obtain the records. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from individuals that have first-hand knowledge, and/or were contemporaneously informed of his right knee symptomatology, the onset, chronicity and/or relationship between his right knee condition and the service or the service-connected left knee disability. The Veteran should be provided a reasonable amount of time to submit this lay evidence. 2. Obtain, either electronically or physically, all treatment records for treatment received at the VAMC dated since May 2011. All attempts to obtain these records must be documented in the claims file. 3. Request the Veteran to identify any sources of private treatment or evaluation relevant to the claim on appeal. Then, undertake appropriate efforts to attempt to obtain any indicated records. Additionally, in light of the forthcoming changes to the 38 U.S.C.A. § 5103A(2)(B), the RO must make two attempts for the relevant private treatment records or make a formal findings that a second request for such records would be futile. All development efforts should be associated with the claims file. 4. Then schedule the Veteran for a VA examination to determine the nature and etiology of the right knee complaints. Any indicated tests should be accomplished. The examiner should review the claims folder and should note that review in the report. The examiner should provide the following opinions: a) Please state whether it at least as likely as not that any disability of the right knee disability began in or is otherwise related to the Veteran's periods of service from June 1964 to April 1969 or from December 1990 to January 1991, or became manifest within one year of service discharge. b) Please state whether it at least as likely as not that any right knee disability was caused, at least in part, due to the service-connected left knee disability. c) Please state whether it is as likely as not that any right knee disability was aggravated (permanently worsened), at least in part, due to the service-connected left knee disability. A complete rationale is required for the opinion rendered. The opinion should address the particulars of this Veteran's medical history, including the VA treatment records, the April 2005 bilateral knee evaluation report, the July 2003 VA examination report, the March 2008 VA opinion report, and the relevant medical science as applicable to this claim. 5. Thereafter, the Veteran's claim should be readjudicated under 38 C.F.R. § 3.310 (2006). If the claim remains denied, the Veteran should be provided with a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board for further 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). _________________________________________________ STEVEN D. REISS 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).