Citation Nr: 1313368 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 05-08 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a right ankle disability. REPRESENTATION Appellant represented by: Ronald C. Sykstus, Attorney at Law ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to March 1975. This matter comes before the Board of Veterans Appeals (Board) on appeal from rating decisions in August 2004 and August 2006 by the above Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to the benefits currently sought on appeal. In March 2009, the Board issued a decision denying service connection for right knee and left ankle disabilities. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Thereafter, in a May 2010 Order, the Court granted the parties' Joint Motion to partially vacate and remand the Board's March 2009, decision for additional evidentiary development consistent with the directives contained therein. [The Board's decision with regard to the Veteran's left ankle claim was not disturbed.] In November 2010, the Board remanded the claim to the agency of original jurisdiction (AOJ) to afford the Veteran a new VA examination. Following this examination, the Veteran's claim was returned to the Board for further appellate review. In September 2011, the Board denied the Veteran's right knee claim for a second time. Again, the Veteran appealed to the Court, and in a November 2012 Memorandum Decision, the Court set aside the Board's decision, as it essentially determined that the Board based its denial of the claim on an inadequate VA medical opinion. The Court remanded this matter for further proceedings consistent with its findings. As was noted in the September 2011 Board decision, issues of entitlement to service connection for hypertension and entitlement to service connection for a left ankle disability based on new and material evidence had been raised by the record and as a result were referred to the AOJ. The record, however, contains no indication that the RO has adjudicated either issue and they must be addressed unless the Veteran clarifies that his intent is otherwise. Inasmuch as these apparently outstanding issues have not yet been adjudicated by the RO, the Board does not have jurisdiction over them and they are once again referred to the AOJ for appropriate action. 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 Pursuant to the directives in the November 2012 Memorandum Decision, the Board finds it necessary to provide the Veteran an additional VA examination to address the insufficiencies noted by the Court with respect to the January 2011 VA medical opinion and other discrepancies in the record. The Veteran seeks service connection for a right knee disability that he claims had its onset during service as a result a flag football injury. As was noted in the September 2011 Board decision, service treatment records fail to reveal any significant right knee complaints other than in February and March 1974 when the Veteran was treated for a right patella injury, diagnosed as right knee sprain. The knee was treated conservatively with an ace wrap, rest, heat, and physical therapy. X-rays of the knee were normal. It appears that the episode was acute in nature and had resolved with treatment and without extended follow-up. At separation in January 1975, the Veteran reported continued occasional right knee pain. The examiner noted that the Veteran had a history of knee injury in May 1974 while playing football that had been treated with physical therapy with good results, but still has occasional pain. The condition was described as a "non disability." See the in-service Report of Medical History-Physician's Summary and Elaboration of All Pertinent Data. Clinical evaluation of all major body systems, to include both lower extremities was within normal limits with no pertinent right knee abnormalities noted and no diagnosis of a chronic right knee disorder. The post-service treatment records are devoid of any reference to a right knee disorder until a September 2003 private treatment report almost 30 years later. X-rays of the Veteran's right knee provided findings consistent with arthritis or a previous injury. The examiner diagnosed osteoarthritis of the right knee, but did not otherwise indicate that any findings first began during military service, or within a year thereafter. When examined by VA in May 2004, the Veteran again reported right knee pain which he attributed to an in-service injury sustained while playing flag football that has continued since his discharge from service. He also gave a history of employment with the Alabama Power Company and that he recently had to change his position from the heavy physical work of climbing poles for 10 years to that of a field representative, where his current duties involved walking and reading power meters. X-rays confirmed evidence of early degenerative changes. The examiner's impression was chronic right knee pain, cause unknown, which the examiner determined was not caused by or a result of service. The examiner cited to the Veteran's lack of restricted duty in service, normal physical profile, and post-service employment where most of his job duties consisted of walking. The Board notes that the above-cited May 2010 Joint Motion for Remand, basically determined that this VA opinion was inadequate because the examiner did not give a reasoned rationale for the opinion and such a conclusory statement was not the kind of explanation which would allow the Board's evaluation of the claimed disability to be a fully informed one. Also of record is an October 2006 private treatment report. The physician noted the Veteran's reports of intermittent right knee problems related to military injuries. The Veteran admitted that at service discharge he really had no problems, but over the years began experiencing pain with prolonged standing. An X-ray of the right knee was essentially normal with the exception of a Pellegrini-Stieda lesion off the medial femoral condyle. The clinical impression was right knee pain status post previous knee injury with apparent MCL sprain with associated Pellegrini-Stieda lesion. The physician failed to specifically relate the Veteran's complaints or findings to military service, but did state that, "if he [the Veteran] has had a documented prior knee injury, this would go along with his present radiographic changes of the medial epicondyle and he may have some medial compartment wear." However he also acknowledged that there was no record that the Veteran injured his knee in the military some 13 years ago. The Board finds that this private opinion is inadequate since, at best, it does little more than indicate the possibility that the Veteran's right knee disability is related to service and thus is entitled to minimal probative value. Bloom v. West, 12 Vet. App. 185, 187 (1999) (by using the term "could," without supporting clinical data or other rationale, doctor's opinion simply was too speculative to provide the degree of certainty required for medical opinion). In an effort to address the inadequacies, and also resolve the conflict, in these opinions, the Veteran underwent additional VA examination in January 2011. Following review of the record, and an examination of the Veteran, the clinical impression was degenerative joint disease of the right knee. The examiner felt that the Veteran more likely developed right knee arthritis as a result of his strenuous job working for the power company, which consisted of climbing poles for 20 years; standing for prolonged periods on hard concrete; and repeated bending of the knees. He explained that, based on his clinical experience, jobs that cause constant overloading on the knees may cause degenerative joint disease. In its November 2012 Memorandum Decision, the Court has challenged the adequacy of the January 2011 opinion on the basis that, despite review of the claims file, the examining physician failed to specifically address the 2006 private report in contravention of the 2010 Joint Motion. In addition, the 2011 report stated that the Veteran had climbed poles during his job for 20 years, while another medical report, the 2010 Board remand, and the 2011 Board decision all stated that he had climbed poles for only 10 years. The Court determined that it was not clear to what degree that 10-year difference may have affected the examiner's opinion. In light of the points raised in the Court, the Board finds that further action in this appeal is warranted. Once VA undertakes the effort to provide an examination for a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) Given the failure of the VA examiner to fully and accurately address the evidence as documented in the Veteran's claims file and by the Court, the Board finds that it has no alternative but to remand this matter for another VA examination. The Board stresses that, because the Veteran is competent to report the onset of knee pain in service (as this requires only personal knowledge and not medical expertise and as it comes to him through his senses), and since there is a diagnosis of arthritis of the knee, the examiner must acknowledge and discuss the Veteran's contention that he developed knee problems during service and that he has experienced continued problems since that time. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Dalton v. Nicholson, 21 Vet. App. 23 (2007). That said, however, the Veteran's contentions regarding this symptom also must be considered in light of the medical and other evidence of record to determine whether his lay testimony is also credible (a factual determination) to resultantly have probative value. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Also, on remand, ongoing medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002). Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). In this regard, the Board notes that the most recent record of any outpatient treatment that the Veteran has undergone (and that is included in his claims folder or Virtual VA folder) is dated in January 2011. In the November 2012 Memorandum Decision, the Court determined that in 2007 the Veteran requested private physician's records in addition to the October 2006 report, but that these records were never obtained. The Board notes that in February 2007, the Veteran submitted a VA Form 21-4142 (Authorization and Consent to Release Information to VA) for M. Patterson, M.D. (with dates of treatment listed as October 2, 2006). Records were requested from this provider and a copy of the Veteran's initial office visit dated October 2, 2006, was subsequently received. However, it does not appear that the Veteran reported any additional dates of treatment for that physician. Nevertheless, as there may be additional medical records from this provider that are available, the AMC/RO should make an attempt to obtain them. See Culver v. Derwinski, 3 Vet. App. 292 (1992) (VA has a duty to obtain all pertinent medical records which have been called to its attention by the veteran and by the evidence of record). Finally, with regard to the right ankle claim, the Board notes that in its September 2011 remand, the AMC/RO was directed to afford the Veteran a VA examination to determine the etiology of any right ankle disability found and obtain relevant records. Upon completion of the development, the AMC/RO was instructed to consider the evidence of record and readjudicate the right ankle issue on appeal. After readjudicating the claim, the AMC/RO was explicitly instructed issue a supplemental statement of the case (SSOC) if it continued its denial of the Veteran's claim. The Board observes that at least part of the requested development was apparently completed via an October 2011 VA examination. However, it appears that the AMC/RO has not yet issued a SSOC prior to returning the claims file to the Board for appellate review or provided the Veteran and his representative an opportunity to respond to this readjudication of the claim. [The Board notes that the October 2011 VA examination report and a September 2011 VCAA letter are contained in a temporary file.] This must be done prior to appellate review. Under 38 C.F.R. § 19.31, the agency of original jurisdiction will furnish a SSOC if, pursuant to a remand by the Board, it develops additional evidence. 38 C.F.R. §§ 19.31(c), 19.38 (2012). Under these circumstances, a remand is also required as to this issue in order to ensure compliance with the development requested by the Board's September 2011 remand and to readjudicate this claim on the basis of that evidence including issuance of an appropriate SSOC. The Board is under a duty to ensure compliance with the terms of its prior remands. Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated). While the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim so that the Veteran is afforded every possible consideration. See, e.g., Ascherl v. Brown, 4 Vet. App. 371, 377 (1993) (where the record before the Board is inadequate, a Remand is mandatory rather than permissive.) Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide any medical records, not already in the claims file, pertaining to treatment or evaluation of his right knee disability since service discharge in 1975, and to provide the identifying information and any necessary authorization to enable the AMC/RO to obtain such evidence on his behalf. The Board is particularly interested in any outstanding pertinent medical records, to include (but not limited to) all office treatment records from M. Patterson, M.D. In any case, the AMC/RO should also ensure that all contemporary records of pertinent VA treatment or evaluation are associated with the claims file. Document all efforts to obtain such records. If any pertinent evidence identified by the Veteran is unavailable, inform him and request that he obtain and submit it. If any records are unavailable/do not exist, and further efforts to obtain them would be futile, document this fact in the claims file. See 38 U.S.C.A. § 5103A(b). All such available documents should be associated with the claims folder or Virtual VA folder (as appropriate). 2. Then, arrange an appropriate VA examination to determine the nature, extent, and etiology of the Veteran's right knee disability, including degenerative joint disease and Pellegrini-Stieda lesion. The claims file must be made available to the examiner for review of the case, and the examination report should include discussion of the Veteran's documented medical history and assertions. A notation to the effect that this record review took place should be included in the report. All indicated tests and studies, including X-rays, are to be performed, and the examiner should review the results of any testing prior to completing the report. All findings should be reported in detail. Complete diagnoses should be provided. For any right knee disability, including degenerative joint disease and Pellegrini-Stieda lesion, diagnosed on examination, the examiner should provide an opinion addressing whether it is at least as likely as not, i.e., a 50 percent probability or greater, traceable to any incidents, symptoms, or treatment that the Veteran experienced or manifested during service (including the in-service treatment for right knee sprain in 1974) or is in any other way causally related to his military service. The opinion provided should include discussion of specific evidence of record particularly the October 2006 private medical opinion, and be accompanied by a clear rationale consistent with the evidence of record. In answering this question, the examiner should address the Veteran's post-service employment history (including his 10-year work history of climbing poles for a power company) and discuss the impact, if any, of these responsibilities on his current right knee disability. He/She should also acknowledge and discuss any of the Veteran's competent and credible statements regarding his in-service activities, the onset of knee problems, and continuity of knee problems since service. If the Veteran's right knee disability cannot be regarded as having been related to service, the examiner should specifically indicate so. The basis for the conclusions reached should be stated in full. If the examiner feels that the requested opinion(s) cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), by a deficiency in the record (i.e. additional facts are required), or by the examiner himself/herself (because he/she does not have the needed knowledge or training). 3. Also, to help avoid future remand, the AMC/RO must ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, supra. 4. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the right knee and right ankle issues on appeal. If the benefits sought on appeal remain denied, furnish the Veteran and his attorney an appropriate SSOC and give them an appropriate time period in which to respond. All evidence should be reviewed, to include the evidence obtained through development pursuant to the Board's remand in September 2011 (i.e., the October 2011 VA examination report). No action is required of the Veteran until he is notified by the RO; however, he is advised that his failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). He has the right to submit additional evidence and argument on the matter that 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 remanded by the Board or the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). 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). _________________________________________________ Michael J. Skaltsounis Acting 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).