Citation Nr: 1319708 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 10-24 565 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for a right knee disability (other than service-connected bony fragment of the right tibia and osteochondrosis), to include as secondary to service-connected bony fragment of the right tibia, and/or pes planus with degenerative joint disease. 2. Entitlement to service connection for a left knee disability, to include as secondary to service-connected bony fragment of the right tibia and/or pes planus with degenerative joint disease. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from June 1957 to June 1959. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. In December 2011, October 2012, and March 2013, the Board remanded the appeal for further development, and it again returns to the Board for appellate review. In his June 2010 substantive appeal (VA Form 9), the Veteran requested a hearing before a Veterans Law Judge, via videoconference. The hearing was scheduled for November 2011, but the Veteran then canceled his hearing request. As no further communication from the Veteran with regard to a hearing has been received, the Board considers his request for a hearing to remain withdrawn. See 38 C.F.R. §§ 20.702(d), (e); 20.704(d), (e) (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board's review of the most recent post-remand record reveals that the May 2013 VA opinions are inadequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, the opinions do not comply with the Board's March 2013 remand orders. The United States Court of Appeals for Veterans Claims (Court) has held 'that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders.' See Stegall v. West, 11 Vet. App. 268, 271 (1998). Three etiological theories are raised by the record with regard to the right and left knee patellofemoral syndrome with osteoarthritis. The Veteran has offered evidence supporting service connection on both a direct and secondary basis, and the latter includes both causation and aggravation by the service-connected disabilities. Service connection is in effect for bony fragment of the right tibia and mild bilateral pes planus. A February 2009 VA examiner opined that the patellofemoral syndrome of the right and left knees is less likely than not related to the bony fragment of the right anterior tibial tuberosity or osteochondrosis of the right knee. The basis for this opinion was that the examiner knew of no causal relationship between the osteochondrosis of the right knee and the development of patellofemoral syndrome and osteoarthritis of the knees. With respect to the left knee, the examiner also noted lack of documentation of true antalgic gait. The Board observes that the examiner indicated that the Veteran's gait was stiff, likely due to lower extremity pain, but that there was no specific limping. Also because the pes planus was not causing a true antalgic gait or limp, the examiner found that the right and left knee disabilities are less likely than not caused by or a result of either the right or left pes planus. However, the examiner did not offer opinions on aggravation. Another VA examination was performed in February 2012 in response to the Board's December 2011 remand, which requested an opinion as to aggravation of the claimed knee disabilities as a result of the right tibia disability. This examiner also offered a negative opinion on the basis that the right tibia bony fragment is asymptomatic and not affecting the Veteran's gait and that there is no etiological relationship between Osgood-Schlatter's disease and osteochondrosis of the right tibia and patellofemoral syndrome or degenerative changes of the knee. The examiner also opined that both the right and left knee disabilities were less likely than not aggravated beyond their natural progression by the right tibia bony fragment. In response to the Board's October 2012 remand, another VA examination was performed in November 2012, for the purpose of ascertaining whether the Veteran's pes planus aggravated his right and left knee disabilities. The examiner reviewed relevant medical literature and found that pes planus does not cause knee pain. Additionally, the examiner noted that the minimal degenerative joint disease found in the bilateral knees is related to the normal aging process. Therefore, the examiner concluded that the Veteran's right and left knee disabilities were not aggravated beyond their normal progression by the bilateral pes planus. Finally, in May 2013, the same examiner offered an opinion as to direct service connection as requested by the Board in its March 2013 remand. The examiner indicated that there was no evidence that patellofemoral syndrome with osteoarthritis and/or osteopenia with possible stress reactions to the proximal tibia bilaterally were related to an event, injury, or disease in service. She also opined that the current disabilities of the right and left knees are not proximately due to the right tibia disability and bilateral pes planus. The Board notes that the examiner did not address the questions regarding aggravation of the right and left knee disabilities by the service-connected disabilities. Unfortunately, the Board finds that the May 2013 opinion is inadequate. Barr, 21 Vet. App. at 311. Specifically, the examiner indicated that there is no evidence that the current right and left knee disabilities are a result of military service, but that discounts without explanation the Veteran's lay statements as to having right and left knee symptoms since service, which were noted by the March 2013 remand. Moreover, the examiner was asked to again offer opinions as to whether the service-connected disabilities caused or aggravated the right and left knee disabilities, but she did not address aggravation. Thus, the opinion did not fully comply with the March 2013 remand orders. Stegall, 11 Vet. App. at 271. In light of the above, the Board finds that the appeal must again be remanded so that adequate VA opinions as to the etiology of the Veteran's right and left knee patellofemoral syndrome with osteoarthritis may be obtained. Further, given the piecemeal manner in which the previous opinions were obtained, the Board finds that the Veteran should be afforded a complete VA orthopedic examination by a different VA examiner who will then offer the opinions requested. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Schedule the Veteran for a VA orthopedic examination to assess the etiology of his right and left knee patellofemoral syndrome with osteoarthritis and/or osteopenia. The claims file must be made available to the examiner, and the examination report must reflect that such review occurred. All pertinent symptomatology and findings must be reported in detail. All tests or studies necessary to make these determinations must be conducted. Upon review of the record and examination of the Veteran, the examiner should address the following: a. Is it at least as likely as not (50 percent or greater probability) that the Veteran's current right knee disability (other than service-connected bony fragment of the right tibia and osteochondrosis), and/or left knee disability, are etiologically a result of a disease, incident, or injury during service? b. Is it at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed right knee disability (other than service-connected bony fragment of the right tibia and osteochondrosis), and/or left knee disability, are causally or etiologically a result of his bony fragment of the right tibia and osteochondrosis? c. Is it at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed right knee disability (other than service-connected bony fragment of the right tibia and osteochondrosis), and/or left knee disability has been chronically aggravated, (i.e., increased in severity beyond its normal progression), as a result of his bony fragment of the right tibia and osteochondrosis? c. Is it at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed right knee disability (other than service-connected bony fragment of the right tibia and osteochondrosis), and/or left knee disability, is causally or etiologically a result of his bilateral pes planus? d. Is it at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed right knee disability (other than service-connected bony fragment of the right tibia and osteochondrosis), and/or left knee disability has been chronically aggravated, (i.e., increased in severity beyond its normal progression), as a result of his bilateral pes planus? (The term 'at least as likely as not' does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A rationale for any opinion advanced must be provided. The examiner should also state what sources were consulted in forming the opinion. The examiner is advised that the Veteran is competent to speak to his history of knee pain as pain is a symptom readily observable by lay persons. The Veteran's subjective reports of his medical history as documented in the claims file and at the examinations must be contemplated by the examiner in forming the opinions. If the examiner finds the Veteran's claims inconsistent or implausible when viewed in the context of the complaints, treatment, and diagnoses documented in and after service, the examiner must explain the reasons for that finding. After completing the above actions, the RO/AMC should conduct any other development indicated by any response received as a consequence of the actions taken in the preceding paragraphs. 4. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence and the issues of entitlement to service connection for a right knee disability (other than service-connected bony fragment of the right tibia and osteochondrosis), and entitlement to service connection for a left knee disability, should be readjudicated. If any benefit sought is not resolved to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ 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).