Citation Nr: 1323326 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 09-40 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right knee disability, to include as secondary to service-connected left knee degenerative joint disease. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran had active duty service from May 1986 to May 1990 and from March 2004 to April 2004. He had additional service with the Air National Guard of Alaska from May 1990 to April 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a Travel Board hearing in September 2011. This case was previously before the Board in February 2012, when the Board remanded the current issue for additional development. In February 2012, the Board also remanded the issues of entitlement to service connection for hypertension, acid reflux, and a left knee disability for further evidentiary development. Thereafter, an October 2012 rating decision granted service connection for hypertension and gastroesophageal reflux disease (GERD), and an April 2013 rating decision granted service connection for left knee degenerative joint disease. As those decisions represent a full grant of benefits sought with regard to these three issues, they are no longer a part of the current appeal. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In February 2012, the Board instructed the RO/AMC to take all indicated action in order to obtain copies of the Veteran's service personnel records from the appropriate record depository. Additionally, the Board instructed the RO/AMC to request the Veteran's dates of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). Pursuant to the Board's February 2012 remand instructions, a request was sent to the National Personnel Records Center (NPRC) in March 2013 asking for verification of the Veteran's duty status from January 21, 1994 to January 22, 1994. This request did not adequately fulfill the Board's remand instructions, and a new request must now be made for the full set of records. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Veteran underwent a VA examination for his right knee in March 2012. The examiner noted that the Veteran had injured his right knee and underwent surgery in 1985 prior to entering active duty. The examiner stated that the Veteran then "had no problems [with the right knee] until after left knee surgery [in 1994] - maybe compensation for the left knee." The examiner diagnosed the Veteran with right knee degenerative joint disease, and opined that such disability was not due to the Veteran's active duty and that his pre-existing right knee condition was not aggravated beyond the natural progression of the disease by his active duty military service. The examiner provided rationale stating that the only objective evidence of a right knee condition in active duty service was in 1986 when the Veteran had a ligament strain, and this strain was noted to have resolved; while the Veteran's bilateral knee history was noted in April 1990, an examination of the right knee was normal at that time. The examiner opined that there was no objective evidence of onset of a chronic right knee condition in active duty or objective evidence of aggravation of the Veteran's pre-existing right knee condition. In April 2013, an additional VA medical opinion was requested. A VA physician reviewed the claims file and opined that the Veteran's currently diagnosed right knee degenerative joint disease, "which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness, to include after injuring his left knee in the line of duty in 1994." The physician provided rationale stating that after the September 1994 surgery on the Veteran's left knee, all subsequent service treatment record (STR) complaints and evaluations were related to left knee symptoms and examination findings until 2006, when the Veteran had medical documentation from his orthopedist with duty restrictions and a diagnosis of osteoarthritis in both knees. The physician opined that natural progression of the Veteran's right knee condition led to his current right knee osteoarthritis. The Board notes that the physician's April 2013 rationale was incorrect in noting that there were no STR findings related to the Veteran's right knee between 1994 and 2006. On the contrary, the Veteran's Reserve STRs document that the Veteran received Synvisc injections for his right knee pain in September 2001 and October 2001; that he underwent right knee anterior cruciate ligament (ACL) reconstruction surgery in January 2002; and that he complained of right knee pain in February 2005. In light of the above, the claims file should be returned to the physician who rendered the April 2013 opinion, in order to obtain an updated opinion. Furthermore, the examiner should be asked to render an opinion regarding a relationship between the Veteran's current right knee disability and his now service-connected left knee degenerative joint disease. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should take all indicated action in order to obtain copies of the Veteran's service personnel records from the appropriate record depository. Additionally, the RO/AMC should request all of the Veteran's dates of ACDUTRA and INACDUTRA. All requests for records and their responses must be associated with the claims folder. If any records requested are unavailable, the reason must be explained for the record. 2. After completion of the above, the RO/AMC should seek an addendum opinion from the VA physician who provided the April 2013 medical opinion regarding the Veteran's right knee, if that examiner is available. It is imperative that the claims file be made available to the examiner for review. Based on review of the record, the examiner should then respond to the following: (a) Is it at least as likely as not (a 50% or higher degree of probability) that any currently diagnosed pre-existing right knee disability was aggravated beyond the natural progression of the disease during the Veteran's active service or any confirmed period of ACDUTRA or INACDUTRA (taking into account the pertinent findings in his Reserve STRs in September 2001, October 2001, January 2002, and February 2005)? (b) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's right knee disability is proximately due to his service-connected left knee degenerative joint disease? (c) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's right knee disability has been aggravated by his service-connected left knee degenerative joint disease? The examiner should offer a rationale for all opinions given with reference to pertinent evidence. If the previous physician is no longer available, a new examination should be conducted, and the requested opinions rendered, by another qualified examiner. 3. After completion of all of the above, the RO/AMC should review the expanded record and readjudicate the issue on appeal. If the issue on appeal remains denied, the RO/AMC should furnish the Veteran with an appropriate supplemental statement of the case, and the case should be returned to the Board after the Veteran is afforded an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ ALAN S. PEEVY 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).