Citation Nr: 1314467 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 10-43 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for right knee osteoarthritis, claimed as secondary to service-connected post traumatic arthritis of the left knee status post total knee replacement. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active military service from July1967 to May 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran requested a hearing before the Board in his October 2010 VA Form 9. A Board hearing was scheduled for November 14, 2011, at the RO. The Veteran subsequently withdrew his request for a hearing. Under these circumstances, the Board finds that the Veteran has been afforded his opportunity for a hearing and that his request to testify before the Board has been withdrawn. 38 C.F.R. § 20.704(e) (2012).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 The Veteran contends that his right knee osteoarthritis was caused by his service-connected left knee disability. The medical evidence of record shows the Veteran has had right knee problems since at least 2002. An outpatient treatment record from Dr. Andrew C. Gygi in October 2002 shows complaints of bilateral "medial compartment arthritis" of the knees. A September 2008 VA outpatient treatment record details that his "right knee [is] starting to hurt medially." In April 2009, a VA examiner diagnosed him with osteoarthritis in his right knee. The Veteran's right knee problems culminated in a right total knee arthroplasty in September 2009. Based on the foregoing, he has a current disability, which satisfies the first element of a claim for secondary service connection. Wallin, 11 Vet. App. at 512. The Veteran is currently service connected for post traumatic arthritis of the left knee status post total knee replacement, which satisfies the second element of a claim for secondary service connection. Wallin, 11 Vet. App. at 512. Regarding the third element of a claim for secondary service connection, a nexus between the two conditions, two articles of evidence discuss the nexus requirement - the April 2009 VA examination and a May 2009 outpatient treatment record from Dr. T. Joseph Dennie. In the VA examination, the VA examiner opined that "[d]espite subjective complaints, there are no objective findings in medical literature or documentation to support" the Veteran's claim of secondary service connection. Indeed, his "current right knee condition is not caused by or is a result of the service connected status post total left knee replacement." Dr. Dennie's record notes that "it is possible that the changes in [the Veteran's] right knee could be secondary to over stress as a result of the abnormalities of the left knee" (emphasis added). Considered in its full context, the May 2009 opinion lacks probative value because it is a statement of mere possibility rather than an opinion of probability. See Warren v. Brown, 6 Vet. App. 4, 6 (1993) (stating that a physician's statement framed in terms such as "may," "could," or "possible" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (a letter from a physician indicating that veteran's death "may or may not" have been averted if medical personnel could have effectively intubated the veteran was held to be speculative); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (the Court found evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a physician's statement that the veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis also implied "may or may not" and was deemed speculative); Bloom v. West, 12 Vet. App. 185 (1999) (the Court held that a physician's opinion the veteran's time as a prisoner of war "could have" precipitated the initial development of a lung condition, by itself and unsupported and unexplained, was "purely speculative"); and Bostain v. West, 11 Vet. App. 124, 128 (1998) (the Court held that a physician's opinion that an unspecified preexisting service-related condition "may have" contributed to the veteran's death was too speculative to be new and material evidence). Additionally, the Board finds the medical opinion from the April 2009 VA examiner is inadequate because the examiner does not address whether the Veteran's service-connected left knee disability aggravated the right knee disability; nor does the opinion include any rationale for why the Veteran's right knee disability was not caused or a result of the left knee disability. This is significant because the medical evidence shows the Veteran walked with a limp favoring his left side after surgery in July 2001 and October 2002. The April 2009 examiner also was not aware at the time that the Veteran had subsequent knee surgery on his right knee in September 2009. A medical opinion must support its conclusions with analysis. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). "Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions [without reasoning or rationale]." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Also, examination and/or opinion must be sufficient to ensure that the Board's evaluation of the claim will be a fully informed one so that the Board is not left to substitute its own medical opinion. Stefl, at 124. Based on the above, another medical opinion is warranted to address whether there is any relationship between the Veteran's right knee disability and his service-connected left knee disability. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic examination. The claims file must be made available to, and reviewed by, the examiner. All appropriate testing should be conducted. The examiner should provide an opinion as to the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that any current right knee disability was caused by the Veteran's left knee disability. (b) Whether it is at least as likely as not (50 percent or greater probability) that any current right knee disability was aggravated beyond its natural progression by the Veteran's left knee disability (to include as a result of walking with a limp favoring the left side). If the examiner believes that there is chronic aggravation or worsening of the Veteran's current right knee disability by the service-connected left knee disability, the examiner should state whether such increase is due to the natural progress of the disability. If it is found that such increase is not due to the natural progress of the disability, the examiner should then provide a medical opinion as to the degree of identifiable increased disability that has been produced by the aggravation. If the degree of increased disability cannot be quantified, the examiner should so indicate. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 2. After the requested examination has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for corrective action. 3. Finally, readjudicate the claim on appeal. If the benefits remain denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond. 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). _________________________________________________ SARAH B. RICHMOND 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). Department of Veterans Affairs