Citation Nr: 1322817 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 09-18 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability due to a left total knee arthroplasty. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from September 1951 to June 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of September 2008, which denied entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability due to a left total knee arthroplasty. In a decision dated in August 2011, the Board denied the appeal as to that issue. The Veteran then appealed to the U.S. Court of Appeals for Veterans Claims (Court). In a February 2013 memorandum decision, the Court vacated the August 2011 Board decision, and remanded the matter to the Board for further proceedings. The issue of entitlement to compensation under 38 U.S.C.A. § 1151 for degenerative joint disease of the right knee, status post total right knee arthroplasty in April 2009, including as secondary to disability resulting from left total knee arthroplasty, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the claim, and it is referred to the AOJ for appropriate action. 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 appellant if further action is required. REMAND The Court, in its February 2013 memorandum decision, found that the VA examination obtained in February 2011 was inadequate, for two reasons. First, the Court found that the Board had made a factual finding that the Veteran's statements of continuing left knee problems since surgery were competent and credible, and that, therefore, the examiner, who considered the Veteran's statements to be exaggerated or not truthful, based his opinion on an inaccurate factual basis. Second, the Court found that the examiner did not address the Veteran's positive findings with sufficient specificity, or adequately explain why there was no additional disability. The Court also found that although the Board discussed the Veteran's complaints of pain and numbness, it did not specifically discuss other reported symptoms, including muscle spasms, cramping, and swelling, and the Veteran's report that shaking his knee left to right sounded and felt like a box of rock inside. The Board also did not discuss objective findings of tenderness, swelling and hypolucency on X-rays. The Court found that an adequate examination must be obtained. The Board also notes that there is additional evidence which should be obtained. In his brief to the Court, the Veteran stated that a neurology report from Dr. Sand was not included in his file at the VA "Blue Clinic," and was not in the claims file. The Board does not find any references to a Dr. Sand, but there are notations dated in January 2009 of an inability to find an EMG report in "Vista imaging," and that a fee basis consultant be contacted to see if they could find it. This should be located if possible, because the Court specifically referred to the Veteran's neurological complaints, particularly numbness, and because the evidence currently of record tends to show other possible etiologies of the Veteran's symptoms including lower extremity numbness and pain. For example, leg pain in April 2005 was attributed to intermittent claudication. Current VA treatment records should also be obtained. VA treatment records in the claims file are dated up to May 2009, but treatment records dated from October 2011 to April 2012 are included in the Veteran's Virtual VA file; these records have not yet been reviewed by the RO/AMC in connection with this claim. They include records pertaining to the left knee, in particular, in November 2011, when the Veteran stated that he had not had considerable trouble with his knees, but did go on "at length" about his claim for "subjective nerve injury" after his left total knee replacement. 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. Obtain the following records from the Kansas City VAMC: * The report of EMG and NCV studies obtained, likely on a fee basis, in December 2008 or January 2009 (notes in January 2009 refer to the inability to find the report in Vista and the next step of contacting the fee basis consult). * All records of treatment and/or evaluations of the lower extremities, especially involving the left knee as well as the complaints of numbness in the leg, to include reports of any X-rays and other tests, dated from: * June 2009 to October 2011, and * April 2012 to the present. 2. Then, schedule the Veteran for an examination by an appropriate physician, preferably one who has not previously been involved in the Veteran's care, for an opinion as to the following: * Is it at least as likely as not (50 percent probability or higher) that the Veteran suffered any additional disability, to include neurological symptoms, muscle spasms, cramping, and swelling, after the left total knee arthroplasty surgery in June 2007? This involves a comparison of the Veteran's condition immediately before the surgery with that after the hospital care and medical or surgical treatment has stopped. * If so, describe the nature and extent of any such additional disability. Please address the Veteran's reported symptom that shaking his knee left to right sounded and felt like a box of rock inside. Also address the significance, if any, of the X-ray findings of a lucency in the knee area. Any necessary studies and/or tests for an accurate assessment of any additional pathology should be conducted. * For any additional disability found to be present, is it at least as likely as not (50 percent probability or higher) that such disability was caused by the surgery or post-surgical follow-up care (or lack thereof, if applicable)? * If there was additional disability caused by VA, the examiner should offer an opinion addressing whether it is at least as likely as not this additional disability was caused by negligence or other instance of VA fault, and whether the event (additional disability) was reasonably foreseeable. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. The claims file must be provided to the examiner in conjunction with the examination, and it is essential that the examiner provide a complete rationale for the opinion, including identification of the specific evidence upon which the opinion is based. Due consideration must be given to the Veteran's lay evidence of his symptoms. The Veteran's lay statements should be accepted, for the purpose of determining whether there is additional disability, unless there are specific medical findings or principles which directly contradict a particular lay statement. 3. After completion of the above and any additional development deemed necessary, readjudicate the claim for compensation pursuant to 38 U.S.C.A. § 1151 for additional disability, claimed as due to VA care, or lack of proper care, during and following a left total knee arthroplasty performed in June 2007. All evidence of record should be reviewed, to include all evidence received subsequent to the June 2011 statement of the case, including the VA treatment records dated from November 2011 to April 2012 already located in Virtual VA. If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, and afforded an opportunity to respond, before the case is returned to the Board for appellate review. 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). _________________________________________________ MICHAEL A. HERMAN 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).