Citation Nr: 1321487 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 08-32 014 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for right knee arthritis, including due to herbicide exposure. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to November 1970. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2007 rating decision by the Buffalo, New York Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied service connection for osteoarthritis. In December 2011 and again in February 2013 the Board remanded the right knee arthritis service connection issue to the RO via the VA Appeals Management Center (AMC) for the development of additional evidence. The Board has reviewed both the Veteran's paper claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. The appeal is again REMANDED to the RO via the AMC. VA will notify the appellant if further action is required. REMAND The Board has twice remanded the issue on appeal, the second time to ensure compliance with the first remand. The United States Court of Appeals for Veterans Claims (Court) has stated that Board remand confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998); 38 U.S.C.A. § 5103A(d) (West 2002). The Board regrets additional delay in adjudicating the appeal, but the Board is obligated to ensure compliance with Board remand orders, including in this case obtaining medical opinion addressing multiple factors pertaining to the claim. The Veteran contends he has osteoarthritis due to in-service herbicide exposure. In the alternative, he alleges that it is due to an in-service motor vehicle accident. In December 2011, the Board remanded the claim so the Veteran could undergo an examination to obtain an opinion as to whether any osteoarthritis disability was related to service, including as result of in-service herbicide exposure. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). Regarding the osteoarthritis, this was diagnosed as degenerative joint disease (DJD/arthritis) of the right knee by the March 2012 VA examiner, and similarly diagnosed in April 2004 as osteoarthritis of the knee by a private treating physician. Thus, the medical evidence shows the Veteran presently has an osteoarthritis disability affecting the right knee, in particular. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). During service the Veteran was in a motor vehicle accident and sustained injury of his right shoulder and of other areas which are not clearly recorded. Unfortunately, some of the Veteran's service treatment records were damaged in a fire and now are poorly legible. Photocopies of the records have been made so that they may be reviewed without further damaging the fragile original pages. In September 1970 the Veteran had a medical examination for separation from service. Later, in October 1970, he was seen at a dispensary, office of the post flight surgeon, following a motor vehicle accident (MVA). The treatment note is damaged and only some parts of it are visible and legible. Legible parts indicate an automobile accident on October 3. Fragments relate that there were "multiple . . ., . . .R[ight] shoulder, R[ight] . . ., . . . joint, + R[ight] fo. . ." At the March 2012 VA examination, the examiner opined that the Veteran's right knee osteoarthritis was not related to his military service. The examiner reasoned that there was "...no documentation in service of a knee injury. Although, the Veteran does have a scar on his right knee, which could be from the motorcycle accident. Veteran is overweight, which is a leading cause of knee DJD." The 2012 opinion did not discuss, however, the possibility that the Veteran's osteoarthritis was caused by presumed herbicide exposure during service, as alleged by the Veteran, even though specifically instructed to do so in the December 2011 Board remand. The 2012 opinion also did not adequately discuss the possibility his right knee DJD was causally related to an in-service motor vehicle accident. The basis for the examiner's negative opinion appears unclear and equivocal, noting a right knee scar that "could be" from an in-service MVA, but not also discussing why the present right knee osteoarthritis was not due to the same in-service MVA. Service treatment and personnel records show that the Veteran sustained an injury involving his right shoulder during a MVA in October 1970. Indeed, in the August 2012 rating decision, in granting service-connection for his right shoulder DJD, the RO implicitly conceded the occurrence of this in-service MVA. In the latter regard, the examiner only considered the documented evidence of record of right knee injury and disease during service. However, there is no indication that, in providing the negative etiological opinion, the examiner considered competent lay statements regarding a right knee bruise from an in-service motor vehicle accident and continuity of symptomatology of bruises since service. Indeed, the Veteran had reported to the examiner that he has had a bruise on his knees that has been there for years. The Veteran is competent as a layperson to offer his account of pertinent symptoms, such as persistent bruises during and since service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a)(2) (2012). When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. Barr v. Nicholson, 21. Vet. App. 303 (2007). In the February 2013 remand the Board called for a supplemental VA medical opinion from the March 2012 VA examiner on whether the Veteran's current right knee osteoarthritis is etiologically linked to service, including as due to presumed in-service herbicide exposure, with consideration of the lay statements of the Veteran. In February 2013, the clinician who examined the Veteran in March 2012 reviewed the Veteran's file. The clinician checked a box indicating that it is less likely than not that the Veteran's right knee arthritis is proximately due to a service-connected condition. The examiner explained as follows: Vet wasn't diagnosed with right knee arthritis until 2012. No documentation in service of a knee injury or diagnosis of right knee arthritis in service. Current medical literature does not support that herbicide exposure causes arthritis. In June 2013 the Veteran argued, through his representative, that the February 2013 opinion is not supported by an adequate rationale because the examiner did not discuss the MVA during service or the Veteran's complaints of right knee symptoms. While the examiner did express an opinion regarding herbicide exposure, the examiner did not discuss the in-service MVA nor the Veteran's report of long term knee bruising. The Board concludes that an additional remand unfortunately is needed. The Board notes that the 2013 review of the file by the 2012 examiner did not result in a supplemental opinion that was fully responsive to the 2011 and 2013 Board remand directives. Therefore, on this repeat remand the Board calls for a new examination, with the examiner to review the claims file and read and provide findings and opinions responding to the specific matters raised in the following remand instructions. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic examination to address the likely etiology of current right knee disability, including arthritis. Provide the examiner the following for review: the Veteran's claims file, any relevant information from his Virtual VA electronic claims file, and a copy of these remand instructions. Inform the examiner that VA has found that the Veteran was in a motor vehicle accident in service and that he sustained right shoulder injury during that accident. Inform the examiner that a fire-damaged service treatment record leaves gaps as to what other parts of the Veteran sustained injury in that accident. Ask the examiner to obtain history from the Veteran as to what if any right knee symptoms he experienced during service (including with the motor vehicle accident), soon after service, and over the years since service. Ask the examiner to review the record, examine the Veteran, and provide diagnoses for current disorders affecting the right knee. For each current right knee disorder, ask the examiner to provide an opinion as to whether it is at least as likely as not that the disorder is causally related to injury or other events in service. Ask the examiner to explain in those opinions the reasoning leading to his or her conclusions, and to include specific discussion of the role if any of the motor vehicle accident in service and reported long term knee bruising after service. 2. Thereafter review the expanded record and reconsider the remanded claim. If the claim remains denied, issue a supplemental statement of the case and afford the Veteran an opportunity to respond. Thereafter, return the case to the Board for appellate review if otherwise in order. The Board intimates no opinion as to the ultimate outcome of the matter that the Board has remanded. The Veteran has the right to submit additional evidence and argument on that matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ MATTHEW D. TENNER 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).