Citation Nr: 1321928 Decision Date: 07/09/13 Archive Date: 07/18/13 DOCKET NO. 08-30 214A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1970 to January 1972. He served in Vietnam from January to May 1971. Among other decorations, he received a Combat Action Ribbon (CAR) for this service. This matter comes before the Board of Veterans' Appeals (Board) from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Service connection for a bilateral knee condition was denied therein. The Veteran appealed this determination. Jurisdiction subsequently was transferred to the RO in Houston, Texas. In November 2012, the Board granted service connection for a right knee disorder. This issue, which was recharacterized in the December 2012 rating decision effectuating the grant as degenerative joint disease (DJD), thus no longer is on appeal. Service connection for a left knee disorder was remanded for additional development. The Board again remanded of this issue for additional development in April 2013. A third remand to the RO via the Appeals Management Center (AMC), in Washington, DC, for additional development concerning this issue now is directed by the Board based on review of the Veteran's claims file and Virtual VA "eFolder." REMAND Although the delay of a third remand is regrettable, adjudication of this matter cannot be undertaken as of yet. More development is needed to ensure that the Veteran is afforded every possible consideration. VA indeed has a duty to assist him in obtaining evidence to substantiate his claim. 38 U.S.C.A. §§ 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Reasonable efforts must be made by VA to assist in the procurement of pertinent records. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c) (2012). Reasonable efforts with respect to records in Federal custody generally consist of making as many requests as are necessary to obtain them. 38 U.S.C.A. § 5103A(b)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). VA treatment records dated into March 2013 have been obtained. They document the Veteran's continued treatment. Accordingly, it is inferred that there may be VA treatment records dated from March 2013 to present. They may be pertinent, in that they concern the Veteran's left knee. VA treatment records plausibly could be expected to be among the evidence before the Board, and thus the Board has constructive notice of their existence. Bell v. Derwinski, 2 Vet. App. 611 (1992). Requests for them accordingly must be made. This requires remand. If VA provides a medical opinion for a service connection claim, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). An opinion is adequate when it allows the Board to perform a fully informed evaluation. Id. It therefore must be based upon consideration of the Veteran's entire medical history. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Ardison v. Brown, 6 Vet. App. 405 (1994). That helps ensure that the factual premises underlying a medical opinion will be accurate, which is required. Reonal v. Brown, 5 Vet. App. 458 (1993). The rationale for a medical opinion also must be fully articulated. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl, 21 Vet. App. at 120. The Veteran last underwent a VA medical examination conducted concerning his left knee in January 2013. A medical opinion was rendered following this examination. It was addended in May 2013, pursuant to the Board's last remand. These actions were undertaken by a certified physician assistant rather than a more qualified physician. The rationale for the original opinion and the addended opinion was not fully articulated. Indeed, that the Veteran jumped from helicopters with a heavy pack on his back during service was not even referenced much less discussed. Of note is that the Board found this factual premise to be accurate in its November 2012 decision concerning his right knee. It follows that this factual premise also is accurate concerning his left knee. A full discussion of the impact of the Veteran's right knee DJD on his left knee also was not provided. To cure these deficiencies, arrangements must be made for another VA examination complete with medical opinion on remand. This shall occur after procurement of any recent VA treatment records so that the opinion is based upon consideration of the Veteran's entire medical history. The examination further shall be conducted by a physician, preferably an orthopedic physician, so that the opinion rendered thereafter is from a highly qualified medical professional. Given the above, a REMAND is directed for the following: 1. Make as many requests as necessary to obtain all VA treatment records regarding the Veteran dated from March 2013 to present. Associate all records received with the claims file or Virtual VA "eFolder." 2. After completing the above, arrange for the Veteran to undergo a VA medical examination regarding his left knee. The examiner shall be a physician, preferably an orthopedic physician. The claims file and pertinent "eFolder" documents shall be reviewed by the examiner. The examiner also shall interview the Veteran. All tests or studies deemed necessary next shall be performed. The examiner finally shall opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's left knee disability: (a) is a result of jumping from helicopters with a heavy pack on his back during service, (b) is otherwise related to his service, (c) was caused by his service-connected right knee DJD, or (d) was aggravated (permanently worsened beyond the natural progression of the disorder) by his service-connected right knee DJD. A clear and complete rationale shall be provided for each opinion. This includes a discussion of pertinent medical principles, with a citation for or the attachment of any literature referenced, as well as the pertinent medical and lay evidence. All previous medical examinations and opinions thus shall be addressed along with continuity of symptoms. If an opinion cannot be provided without resort to mere speculation, the rationale specifically shall include an indication of whether this is because more information is needed, because information that cannot be obtained is needed, because the limits of current medical knowledge have been exhausted, or because of some other reason. A report documenting the above actions shall be placed in the claims file or "eFolder." 3. Lastly, readjudicate the Veteran's entitlement to service connection for a left knee disability. If this benefit is not granted, furnish him and his representative with a supplemental statement of the case (SSOC). Allow them the requisite time period to respond. A copy of the SSOC shall be placed in the Veteran's claims file or Virtual VA "eFolder." No action is required of the Veteran until he is notified by the RO or AMC. However, he is advised that failure to report for any scheduled examination may result in denial of the benefit(s) sought. 38 C.F.R. § 3.655 (2012). He also is advised that he has the right to submit additional evidence and argument on the issues the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This matter must be afforded expeditious treatment. The law indeed requires that all matters remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C.A. § 7252 (West 2002). This remand is a preliminary order and does not constitute a decision on the merits by the Board. 38 C.F.R. § 20.1100(b) (2012).