Citation Nr: 1322567 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 09-15 160 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for right knee disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant and Appellant's Spouse ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from December 1973 to November 1978. This appeal comes to the Board of Veterans' Appeals (Board) from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran provided sworn testimony in support of his appeal during a hearing before the undersigned Veterans Law Judge in May 2013; the hearing transcript has been associated with the file and has been reviewed. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. 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 Although the Board regrets the additional delay, a remand is necessary to ensure that the Veteran is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran's service treatment records reflect he suffered a right knee injury in May 1976 and a subsequent right knee injury in October 1976. In February 2009 the Veteran was afforded a VA examination. In opining that the Veteran's current right knee mild osteoarthritis is less likely than not related to the Veteran's 1976 in-service knee injury, the examiner explained that the Veteran's exit physical and history did not reveal any significant right knee pathology on discharge. However, the examiner's summary of the Veteran's service treatment records did not address all of the records relating to the Veteran's knee injury. Specifically, the examiner noted that when the Veteran was first seen for the injury in May 1976 there was consideration of a torn ligament. The examiner then refers to a July 12, 1976 orthopedic clinic note reflecting that the Veteran had no objective signs of ligamentous or meniscal injuries and no evidence of disuse of the knee. However, the examiner did not address the other records relating to the Veteran's knee treatment, including the following. On June 1, 1976 the Veteran reported his knee giving way and popping. On June 10 laxity in the joint and clicking in the lateral direction was found, a questionable positive drawer sign was noted, and the Veteran was assessed with internal derangement of the right knee and probable torn medial ligament. On July 26 the Veteran again complained of popping and stiffness but did not report locking, giving way, or swelling. He was noted to have a 2+ anterior drawer sign and a positive McMurray's test. The impression was a possible torn anterior lateral meniscus. On August 17 the Veteran was found to have no specific symptoms of a torn meniscus and suspected chondromalacia was assessed. On remand, this evidence should also be considered. Also, subsequent to the Veteran's February 2009 VA examination, he underwent magnetic resonance imaging (MRI) that showed a medial meniscus tear for which he had a right knee arthroscopy in October 2012. At the time of the VA examination, the Veteran had only been diagnosed with patellar tendonitis and osteoarthritis by x-ray, but had not had an MRI. Therefore, on remand the examiner should also consider the new diagnosis of a medial meniscus tear. Finally, the Board notes that at his May 2013 Board hearing the Veteran testified he has continuously had crackling, clicking, or popping in his knee since the 1976 injury. His spouse also testified that the Veteran's knee has popped and clicked since service. The Veteran further testified a doctor told him he could have had a minor tear in 1976 that deteriorated enough over the years to require repair in 2012. The United States Court of Appeals for Veterans Claims (Court) has held that a medical opinion based on an inaccurate or incomplete factual premise is not probative. Moreover, once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, as the VA examiner did not consider all of the relevant evidence in rendering an opinion, a remand is necessary in order to afford the Veteran an adequate VA examination so as to determine the etiology of his current knee disability. Specifically, the new examination must address the service treatment records not discussed in the February 2009 VA examination and the Veteran's 2012 diagnosis of a medial meniscus tear. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a new VA examination to determine the etiology of his right knee disability. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. After interviewing the Veteran, reviewing the record, and conducting any necessary testing, the examiner should offer an opinion as to whether it is at least as likely as not (i.e. at least a 50-50 probability) that the Veteran's current right knee disability, including osteoarthritis and medial meniscus tear, is related to his military service, specifically his May 1976 and October 1976 right knee injuries. In offering an opinion, the examiner must consider all of the relevant evidence of record, including service treatment records from June 1, June 10, July 26, and August 17, 1976. 2. After completing the above action, the Veteran's service connection claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ MICHELLE L. KANE 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).