Citation Nr: 1323917 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 06-14 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a right knee or leg disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from March 1979 to January 1983 and has unverified reserve service from January 1978 to April 1978 and December 1995 to September 2004. The Veteran also has unverified National Guard service from May 1983 to April 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied entitlement to service connection for a right leg disability. In May 2009, January 2011, and September 2012, the Board remanded this matter for additional development and adjudication. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are thus far either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 In its September 2012 remand, the Board requested that the Veteran be provided with a VA examination to obtain an etiology opinion regarding the right knee/leg disability. The Veteran was provided a VA examination in November 2012, where the examiner found based upon lay testimony that the only residuals of the in-service knee injury were abrasions, contusions, and possibly a sprain. The examiner stated that those were self-limiting conditions and the medical evidence did not show current residuals from the in-service injury. The examiner also found that the inclusion body myositis (IBM) clearly existed prior to the October 2002 knee injury based on the orthopedic and primary care notes detailing issues with the muscle weakness. Finally, the examiner concluded that the current right knee disability was most likely due to his nonservice-connected IBM. As a rationale, the examiner stated that the treatment notes clearly show that the issues with the right knee in terms of weakness, walking difficulty, and pain are due to the significant muscle wasting from IBM, which is an autoimmune disorder and a progressive course with many effects. The Board acknowledges that the presumption of soundness is likely not applicable to the period of service during which the 2002 injury occurred, as that period of service does not appear to constitute active duty. However, given that the Board specified that the examiner was to answer certain questions, the Board at this point is compelled to ensure compliance with the prior remand. In this regard only, the Board finds that the VA opinion is inadequate. In compliance with the prior remand, the VA examiner must provide an opinion regarding IBM, which specifically finds whether IBM clearly and unmistakably pre-existed service and, if so, whether IBM clearly and unmistakably underwent a permanent aggravation beyond its natural progression. The examiner did not address whether the IBM was aggravated by service. The Board notes that the examiner must express the conclusions provided in terms of clear and unmistakable evidence, both of the pre-existence of IBM and for the aggravation of IBM. In addition, while the examiner stated that the right knee disability was "clearly due to IBM," a May 2011 X-ray report indicated that there was possible enthesopathy or prior trauma. A June 2005 private opinion from the Veteran's private treating physician stated that the injuries sustained as a result of the Veteran's fall during training could cause permanent partial disability. The Board requests that the examiner explain the opinions provided in light of the May 2011 X-ray and the June 2005 private opinion. Accordingly, the case is REMANDED for the following action: 1. Forward the claims file and any relevant evidence contained in the virtual file to the May 2011 VA examiner, if available, to obtain the opinions listed below. If the same examiner is unavailable, provide the Veteran with a new VA examination in order to obtain the requested opinions regarding etiology of the right knee/leg disability. The claims folder, including this remand and any relevant records contained in the virtual file, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. It may be helpful for the examiner to list the opinions regarding the diagnosed patellofemoral compression syndrome and any other right knee/leg diagnosis shown since October 2004 in the same order as the following questions. The examiner must state: (a) Is it at least as likely as not (at least a 50 percent probability) that the Veteran's current right knee disability is related to the injuries he incurred during Army Physical Fitness Testing (APFT) on October 5, 2002? (b) Is it at least as likely as not that the Veteran's current right knee disability was aggravated by the injuries he incurred during APFT on October 5, 2002? (c) If the right knee/leg disability(s) is not related to, or aggravated by, the injuries he incurred during APFT, is it at least as likely as not that the Veteran's current right knee disability is otherwise related to his military service or any other incident therein? (d) Is it at least as likely as not that the Veteran's current right knee disability is related to, or is a symptom or part and parcel of, his nonservice-connected inclusion body myositis (IBM)? (e) If a current right knee disability is related to, or a symptom of IBM, did IBM clearly and unmistakably pre-exist service? (f) If so, did IBM clearly and unmistakably undergo permanent aggravation beyond its natural progression during or due to his military service or injuries therein? The examiner is advised that the Veteran is competent to report his symptoms and history. The examiner should provide reasons for each opinion provided that take into account the Veteran's reports of his history, the reported in-service injuries, exposures, or events, and his current symptoms. Moreover, the examiner must explain the opinions in light of the June 2005 private opinion and the May 2011 X-ray report if the opinions provided are at odds with that evidence. If the examiner discounts the Veteran's reports, he or she should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. 2. The agency of original jurisdiction (AOJ) should review the examination report to ensure that it contains the information, opinions, and rationales requested in this remand. 3. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ Thomas H. O'Shay Acting 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).