Citation Nr: 1314352 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 03-24 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to an increased rating for residuals of an arthrotomy of the right knee, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and V.M. ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from March 1967 to March 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2001 rating decision of the Regional Office (RO) in Detroit, Michigan. In a July 2004 decision, the Board reopened the claim for service connection for a left knee disorder and remanded the claim of entitlement to an increased rating for the service-connected residuals of an arthrotomy of the right knee and the claim of entitlement to service connection for a left knee disorder. In a May 2006 decision, the Board denied the claim of entitlement to an increased rating for the service-connected residuals of an arthrotomy of the right knee and remanded the claim of entitlement to service connection for a left knee disorder. The Veteran appealed the Board's denial of entitlement to an increased rating for his service-connected right knee disorder and pursuant to a motion by VA, the Court of Appeals for Veterans Appeals (Court) entered an Order in October 2006 remanding this issue. In January 2007, the Board remanded the claim for an increased rating for a right knee disorder for compliance with the Court's Order. In September 2008, August 2009, and November 2010, the Board remanded the claims of entitlement to service connection for a left knee disorder and entitlement to an increased rating for a right knee disorder. The appeal is again remanded to the RO via the Appeals Management Center in Washington, DC. REMAND Service Connection for a Left Knee Disorder With regard to the claim of entitlement to service connection for a left knee disorder, the etiology opinion provided in the December 2010 examination report is inadequate. VA has a duty to assist veterans in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 § C.F.R. § 3.159 (2012). Where a medical examination does not contain sufficient detail to decide the claim on appeal, the Board must return the report as inadequate for evaluation purposes. Hayes v. Brown, 9 Vet. App. 67, 73 (1996); 38 C.F.R. § 4.2 (2012). In this case, the December 2010 VA examiner opined that the left knee disorder was not related to the Veteran's military service as the Veteran did not have a left knee disorder at separation from service and the first evidence of a left knee disorder subsequent to service was dated in 1985, approximately 16 years after service separation. While the examiner addressed the Veteran's service treatment records in the opinion and provided supporting rationale, the examiner did not address the significance, if any, of the Veteran's complaints of left knee pain noted in the May 1969 VA examination report or in an October 1979 treatment record from Dr. A.T. The examiner also did not discuss a December 1970 letter from Dr. W.E.J. indicating abnormalities of the knees. On remand, the VA examiner must address the Veteran's lay statements and treatment records indicating continuity of pain since service and indicate whether his complaints of pain are in any way related to the left knee disorders diagnosed during the pendency of this claim. In addition, the 2010 VA examiner did not address opinions from private providers which indicate a potential relationship between the left knee disorder and the Veteran's military service. Private opinions were submitted in May 1985 from Dr. R.J.S., in May 2004 from Dr. M.E.M., in September 2004 from Dr. P.J.S., and in January 2006 from Dr. D.A.D. On remand, the VA examiner should address the opinions provided by the private treatment providers. Further, the 2010 VA examiner did not address the etiology of all left knee disorders diagnosed during the pendency of the claim. During the pendency of the claim, providers have diagnosed and/or identified torn cartilage, chronic chondromalacia, severe arthritis, and degenerative joint disease of the left knee. A November 2005 magnetic resonance imaging (MRI) report shows a small tear in the anterior cruciate ligament (ACL) and mild thinning of the hyaline cartilage. The MRI report shows diagnoses of mild degenerative arthropathic changes, small old incomplete tear in the inferior anterior cruciate ligament, and mild degenerative changes. On remand, the examiner should address all disorders diagnosed during the pendency of the claim, and indicate whether any of the disorders are related to the Veteran's military service or to a service-connected disorder. Increased Evaluation for the Right Knee Disorder With regard to the Veteran's service-connected right knee disorder, at his March 2013 hearing before the Board, the Veteran submitted private treatment records indicating that he underwent right knee arthroscopy, right knee medial plicectomy, and right knee corticosteroid injection in February 2012. During his hearing, the Veteran waived RO review of the treatment records; however, because the treatment records indicate a change in the state of the Veteran's service-connected right knee disorder since his December 2010 VA examination, a remand is necessary to schedule a VA examination to determine the current nature and severity of his right knee disorder. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95, 60 Fed. Reg. 43186 (1995). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded the appropriate VA examinations to determine whether any left knee disorder currently found or previously diagnosed is related to his active duty service or to a service-connected disorder, to include his service-connected right knee disorder. The claims file and all pertinent records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings must be reported in detail. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any left knee disorder currently found or previously diagnosed in the record is related to the Veteran's active duty service. The examiner must also state whether any left knee disorder currently found or previously diagnosed in the record is due to or aggravated by any service-connected disorder, to include his service-connected right knee disorder. The examiner must specifically address the previous left knee findings of torn cartilage and ACL, chronic chondromalacia, severe arthritis, and degenerative joint disease. In the discussion, the examiner must address the significance of the Veteran's complaints of left knee pain since service as noted in his May 1969 VA examination report and October 1979 treatment record from Dr. A.T. The examiner must also address the December 1970 letter from Dr. W.E.J. indicating abnormalities of the knees. In addition, the examiner must address the May 1985, May 2004, September 2004, and January 2006 opinions from private providers addressing the etiology of the Veteran's left knee disorder. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The Veteran must also be afforded a VA examination to determine the current severity of his service-connected residuals of an arthrotomy of the right knee. The claims file and pertinent records on Virtual VA must be made available to the examiner in conjunction with the examination, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records, if any, that are reviewed. The examiner must record all pertinent medical complaints, symptoms, and clinical findings, in detail. All indicated tests and studies, to include active range of motion testing of the knee, expressed in degrees, with standard ranges provided for comparison purposes, must be accomplished, with the use of a goniometer. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same range of motion studies must then be repeated after at least 10 repetitions and after any appropriate weight-bearing exertion. Then, after reviewing the Veteran's complaints and medical history, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to the service-connected right knee disorder. The examiner must also indicate whether there is any recurrent subluxation or lateral instability of the Veteran's knee, and if so, whether it is slight, moderate, or severe. 4. After the development requested has been completed, the RO must review the examination reports to ensure that they are in complete compliance with the directives of this Remand. If the reports are deficient in any manner, the RO must implement corrective procedures at once. 5. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claim. 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 an examination, documentation must be obtained which shows that notice scheduling the examinations was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims of entitlement to an increased rating for the service-connected residuals of an arthrotomy of the right knee and entitlement to service connection for a left knee disorder must be readjudicated. If any benefit on appeal 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. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).