Citation Nr: 1322822 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 10-01 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1963 to December 1966 and from July 1969 to July 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the St. Louis, Missouri Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims file is now in the jurisdiction of the Detroit, Michigan RO, although VA now corresponds with the Veteran at a Lakeland, Florida address. In July 2009, a hearing was held before a Decision Review Officer at the RO. A transcript of the hearing is in the claims folder. The Veteran had also initiated an appeal of a denial of service connection for retinopathy; in December 2009 he withdrew that appeal. In August 2012, the Board granted service connection for left knee disability, and remanded the instant claim to the RO for further development. The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND In August 2012, the Board found that while the notice provisions of the VCAA appeared to be satisfied, further development of the record was required to comply with VA's duty to assist the Veteran in the development of the facts pertinent it. The Board noted that VA's duty to assist includes providing for a VA examination/securing a medical opinion, when necessary. A VA examination is necessary in a service connection claim when: (1) There is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) there is evidence establishing that an event, injury, or disease occurred in service; (3) there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) there is otherwise insufficient competent evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to factor # 3 above the United States Court of Appeals for Veterans Claims (Court) stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Furthermore, governing caselaw provides that once VA undertakes to arrange for a medical examination/secure a medical opinion, it must obtain one that is adequate. STRs show that on March 1974 service evaluation, the Veteran complained of right knee pain for 2 days. Examination revealed infusion and swelling of the right knee. There was little effusion, slight crepitus, and negative cartilage. The impression was excessive use, and quad sets were prescribed. On May 1980 evaluation, complaints of right leg pain for one week were noted; the Veteran reported that his knee dislocates laterally. The assessment was chondromalacia. On November 2007 VA examination, it was noted that the Veteran injured his right knee in Vietnam and again in March 2006. The examiner noted that X-rays in November 2007 revealed very minimal osteoarthritis changes and opined that the Veteran should have more advanced X-ray changes if he had a chronic right knee condition "since his active service (ie 1966)," and opined that the Veteran's current right knee condition was not likely related to his service knee conditions. This opinion did not take into account that the Veteran had service after 1966, until 1984, or that he had right knee complaints during such service (and is therefore based on an incorrect factual premise); furthermore, the examination preceded the Veteran's July 2009 hearing, and the examiner obviously had no opportunity to consider the Veteran's testimony regarding trauma to the knee during the later service. Consequently, the examination and opinion offered were found to be inadequate. The Board noted that in May 2010, Edward J. Nebel, M.D. opined (in essence) that the Veteran's paratrooper duties in service with related concussive and twisting injuries sustained in landings caused repeated knee strains and contusions, resulting in degenerative arthritis of the right knee. The Board also noted that in a claim of service connection, the entire history of the disability is pertinent evidence. The record did not include the complete records of the treatment related to the Veteran's March 2006 right knee injury (including subsequent surgery) or any related insurance/workman's compensation records. The Board noted that the Veteran's cooperation would be needed to secure any private records. On remand, the RO obtained private medical records from Ira Sabaugh, M.D. His records indicate that in April 2006, the Veteran complained of less activity due to right knee pain. In June 2006, the assessment was right knee osteoarthritis/internal derangement. In August 2006, Dr. Sabaugh reported that the Veteran injured his right knee at work about a year beforehand, but that it had resolved, and then the day before the current treatment, he was getting off a truck and twisted his knee and had pain on the outside of the knee with walking. The assessment was lateral right knee strain with possible meniscus tear. After an MRI in September 2006, the assessment was medial meniscus tear, and the Veteran was referred to Dr. Nebel and was scheduled to see him in October 2006 pre-op at Mercy Hospital. An October 2006 record from Dr. Sabaugh indicates that the Veteran was post-surgery at that time. The records of all treatment the Veteran received from Dr. Nebel, including of right knee surgery at the Mercy Hospital, have not been obtained; and (contrary to the Board's August 2012 remand orders that the examination should be conducted after all postservice records of right knee treatment were obtained) the October 2012 VA examination was conducted before the records from Dr. Sabaugh were received (resulting in an opinion based on an incomplete record),. Accordingly, a remand for corrective action is required. RO compliance with a remand is not discretionary. If an RO fails to comply with the terms of a remand, another remand for corrective action is required. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran is advised that a governing regulation provides that where evidence requested in connection with a claim for VA benefits is not received within a year of the request, the claim will (emphasis added) be considered abandoned. See 38 C.F.R. § 3.158(a). Accordingly, the case is REMANDED for the following: 1. The RO must secure for the record copies of the complete records of all postservice treatment the Veteran received for his right knee (records of which are not already in the claims file). He must assist in this matter by providing identifying information and all releases necessary. Of particular interest are the complete medical records of all treatment he received from Dr. Nebel, including for right knee surgery at the Mercy Hospital in October 2006, and complete records pertaining to any insurance claims/awards and any Workman's Compensation claims (If there are none, it should be so certified for the record.).. 2. After the development sought above is completed, the RO should arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of his current right knee disability(ies). The Veteran's claims file (and any pertinent records in Virtual VA, but not in the claims file-which must be provided to the examiner) must be reviewed by the examiner in conjunction with the examination. Based on a review of the record and examination of the Veteran, the examiner must provide opinions that respond to the following: (a) Please identify (by medical diagnosis) each right knee disability entity found. (b) As to each right knee disability entity diagnosed, please opine whether it is at least as likely as not (a 50% or better probability) that such disability is related to the Veteran's service, to include the documented complaints/injuries therein. The examiner must explain the rationale for all opinions, citing to supporting factual data. 3. The RO should ensure that all development sought above is completed, and then readjudicate the claim (under 38 C.F.R. § 3.158(a), if indicated). If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant 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 for additional development or other appropriate action must be handled in an expeditious manner. ______________________________________________ George R. Senyk 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).