Citation Nr: 1317901 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 09-42 188A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee patellofemoral syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from August 1999 to June 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, which, in pertinent part, denied the Veteran's claim of entitlement to service connection for a left knee disability. The January 2008 rating decision also granted service connection for patellofemoral syndrome of the right knee, tendonitis of the right shoulder, and tendonitis of the left shoulder. A 10 percent rating was assigned for the right knee patellofemoral syndrome, and a noncompensable rating was assigned for each shoulder, all made effective June 18, 2007. Although the appellant also initially disagreed with the initial ratings assigned for patellofemoral syndrome of the right knee and tendonitis of the shoulders and was provided with a statement of the case on these additional issues, on his VA Form 9, he limited his appeal to the issue of entitlement to service connection for a left knee disability. As such, this is the only issue currently before the Board. 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 service connection is warranted for a left knee disability because it began during service. Specifically, in his March 2008 notice of disagreement, he indicated that during service in March 2007, after his separation physical was performed, he started noticing a slight pain and a clicking noise in his left knee, which was almost identical to symptoms experienced in his right knee, but less severe. The Veteran indicated that within a few weeks of normal activity performing duties in the inactive Reserves, his left knee pain gradually increased. As such, he sought medical attention and went to a civilian doctor in July 2007. Initially, the Board notes that a review of the record reveals that the Veteran's service treatment records from his period of service in the Reserves are not of record. As such, these service treatment records should be obtained on remand. A July 2007 private treatment record from the Center for Advanced Orthopedics notes the Veteran's complaints of recurrent knee pain, worse on the left side. The Veteran complained of some swelling and difficulty with kneeling and squatting. There was crepitation on the left. The diagnoses included patellofemoral dysfunction and antalgic gait. It was noted that the Veteran could benefit from injection and physical therapy. It was also noted that follow-up with X-rays was to be in two weeks. The Board notes that the follow-up private treatment records are not contained in the claims file. As such, the RO/AMC should attempt to obtain these records on remand. The Board also notes that the Veteran underwent a VA examination in October 2007. The October 2007 VA examination report notes that the Veteran was diagnosed with bilateral patellofemoral syndrome. No opinion as to the etiology of the left knee diagnosis was rendered, however. Although the Veteran's service treatment records do not reflect any complaints of or treatment for any left knee problems, the Veteran filed his claim for service connection for a left knee disability approximately one month after he was discharged from service. The above mentioned July 2007 private treatment record (dated approximately one month after service separation) reflects a diagnosis of patellofemoral dysfunction. Additionally, the October 2007 VA examination report notes that the Veteran stated that his left knee had been painful for six to seven months. This would place the onset of the left knee pain during active service. VA has a duty to obtain a medical examination when the record contains competent evidence of a current disability or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service; an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability; and insufficient evidence to decide the case. 38 U.S.C.A. §5103A (West 2002); 38 C.F.R. §3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such examination is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the October 2007 VA examination is inadequate for adjudication purposes in that it does not contain an opinion as to the etiology of the left knee patellofemoral syndrome. Despite the lack of service treatment records showing complaints of left knee problems, the Veteran has consistently maintained that his left knee clicking and pain began in March 2007, the July 2007 private treatment record reflects a diagnosis of patellofemoral dysfunction approximately one month after service separation, and the Veteran has maintained that he has had recurrent left knee pain since March 2007. As such, the case must be remanded in order to obtain a supplemental medical opinion regarding the etiology of the Veteran's left knee patellofemoral syndrome. The Board also notes that service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439 (1995). In his notice of disagreement, the Veteran indicated that he uses his right and left knees in conjunction with each other, and when one is injured, the other starts to carry the full load. Based upon this statement, the Board finds that the Veteran is alleging that his left knee disability may be secondary to his service-connected right knee disability. Consequently, an opinion regarding secondary service connection must be obtained on remand. Finally, as the issue of secondary service connection has been raised with regard to the claim for service connection for a left knee disability, the Veteran should be sent corrective VCAA notice that addresses the criteria for a successful secondary service connection claim, to include notice in accordance with 38 C.F.R. § 3.310 and Allen v. Brown, 7 Vet. App. 439 (1995). Accordingly, the case is REMANDED for the following action: 1. Ascertain the dates of the Veteran's military service in the U.S. Naval Reserve, including all dates of active duty, ACDUTRA, and inactive duty training served therein. Obtain all pertinent service treatment records involving that Reserve service. 2. Send the Veteran a VCAA letter providing notice of the evidence required to substantiate a claim for secondary service connection, i.e., that his left knee disability was incurred or aggravated beyond its normal progression as a result of his right knee patellofemoral syndrome, in accordance with Allen, 7 Vet. App. 439 (1995). 3. Contact the Veteran and request that he provide the names, addresses, and dates of treatment of all medical providers, VA and non-VA, from whom he has received treatment for his left knee, to include follow-up appointments for his left knee at the Center for Advanced Orthopedics in 2007. After securing the necessary authorizations for release of this information, the RO should seek to obtain copies of all treatment records referred to by the Veteran. Any negative response should be documented in the claims file. 4. Refer the Veteran's claims file to the clinician who conducted the October 2007 VA examination, or another suitably qualified VA medical professional, for a clarifying opinion concerning the etiology of the Veteran's currently diagnosed left knee disability, to include his left knee patellofemoral syndrome. The examiner must be given full access to the record, to include any records which may be obtained and associated with the claims file, or electronic file, in connection with the remand directives. If, after review of the file, the examiner determines that another VA examination is necessary, such examination must be scheduled and the Veteran must be notified. The VA examiner must provide an opinion concerning whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed left knee disability, to specifically include the Veteran's left knee patellofemoral syndrome, had its onset during active service or is otherwise caused by or related to active service. The examiner must also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed left knee disability, to specifically include the Veteran's left knee patellofemoral syndrome, was caused or aggravated by his service-connected right knee patellofemoral syndrome. The VA examiner is advised that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms Any opinion(s) expressed should be accompanied by a complete rationale. 5. Thereafter, readjudicate the issue on appeal, to include as secondary to service-connected disability, considering all evidence of record. If any benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran and his representative an appropriate opportunity to respond. The case should be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ U. R. POWELL 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).