Citation Nr: 1327498 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 09-14 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1950 to September 1954 and from December 1954 to December 1965. This matter is before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). The case was originally before the Board on appeal from a July 2008 rating decision by the Boise, Idaho Department of Veterans Affairs (VA) Regional Office (RO). In July 2010, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. The case was before the Board in July 2010, when it was remanded for additional development. In a decision issued in February 2011, the Board denied the Veteran's claim of service connection for a left knee disorder. He appealed that decision to the Court. In June 2012, the Court issued a mandate that vacated the February 2011 Board decision and remanded the matter on appeal for readjudication consistent with the instructions outlined in its June 2012 memorandum decision. In January 2013, the Board remanded this issue for the Agency of Original Jurisdiction (AOJ) to complete development necessary to comply with the Court's June 2012 memorandum decision. The Board's January 2013 remand noted that the issue of special monthly compensation (SMC) based on the need for regular aid and attendance (A&A) of another person has been raised by the record (August 2010 statement), but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it was referred to the AOJ for appropriate action. The record does not reflect that action has yet been taken on this claim; accordingly, the Board again refers the matter 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 Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND When the Board remanded this case in January 2013, it directed that action must be taken to (1) search for a secure any and all available records of orthopedic evaluation or treatment the Veteran received at VAMC Boise from 1980 to March 1999, and (2) arrange for an orthopedic examination of the Veteran to determine the nature and etiology of his left knee disability. Significantly, the Court's June 2012 memorandum decision found that the previous August 2010 VA examination report is inadequate for the purposes of appellate review, and the Board must obtain a new adequate medical opinion for appellate review to comply with the Court and for a new Board decision to survive further judicial scrutiny. Following the January 2013 Board remand, additional VA medical records were received and associated with the claims-file. Thereafter, the Veteran underwent a new VA examination in May 2013 and a report with medical opinion was prepared on the basis of this examination and review of the record. The May 2013 VA examination report reflects that the VA examiner reviewed the new "stack of medical records ... that spans 1983-1997," and found that "[t]here is only one mention of anything involving the left knee and that was a gout attack in June 1987...." The examiner remarks that "Veteran's CPRS record at the Boise VA begins in 1995" and "[t]here is no mention whatsoever in CPRS of any left knee condition through 2003." The examiner goes on to discuss that within the claims-file "there is a note from Dr. Stanley Waters dated 7/2/2002 at which time veteran had nocturnal left knee pain for several months with a Baker's cyst in the left knee worst after activity." The examiner found that "[t]his is the first mention of any left knee issue per se." The examiner notes that "[b]y 1/2004, he had the left total knee replacement." Ultimately, the May 2013 VA examination report's etiology opinion repeatedly cites that "there is simply no evidence veteran sought medical attention for his left knee (other than once for gout in 1987) between 1966 and 2002. He sought medical attention for his [other disabilities], and nowhere is there mention of a left knee issue. This is not mere absence, it is silence." Later in the discussion of rationale, the examiner again emphasizes the importance of "the fact that from 1983 until 2002 there is no documented evidence of left knee pathology (other than gout in 6/1987) even though veteran sought attention for [other disabilities]." Later, again, the VA examiner discusses the Veteran's account of a 1969 ankle injury and surgery and remarks that "it was not until 33 years later [in 2002] that veteran sought medical attention for his left knee arthritis." The examiner further emphasizes that "there is no evidence of any left knee condition scattered in the medical records for that period, nor is there any from 1995 on (once he was permanently back in the U.S.), until 2002." The May 2013 VA examiner's medical opinion relies upon this repeated emphasis of his observation that the Veteran had documented post-service treatment for other disabilities with no apparent complaints regarding the left knee other than a single episode of gout in 1987. The May 2013 VA examiner explains his disagreement with contrary opinions of record on the express basis that they are "based on incomplete evidence" and that they do not account for the cited silence of the medical records regarding any left knee disability during pertinent post-service periods until the year 2002. However, in a July 2013 written statement, the Veteran's attorney directs the Board's attention to the fact that "[i]n January 1998, the veteran sought treatment for "mild swelling in left knee." The attorney notes that "[t]he [May 2013 VA] examiner stated that there was no evidence of a left knee condition in the veteran's medical records from 1995 until 2002; however, there is a medical record from 1998 which noted swelling in the veteran's left knee." The attorney argues that "[a] medical opinion which is founded upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993)." The Veteran's attorney "respectfully asserts that the May 2013 VA examination was inadequate and requests that [the Veteran] be provided with a new, adequate examination." A review of the record found that a January 1998 VA medical report documents "left knee swelling" associated with an acute gout flare. This report was not part of the most recently obtained VA treatment records and appears to have been overlooked by the May 2013 VA examiner. To ensure that every consideration is afforded to the Veteran's claim, the Board finds it appropriate to grant the his request that the matter be remanded for the VA examiner to address the significance, if any, of the January 1998 VA medical report of left knee swelling. The Board regrets the additional delay to final appellate review of this matter. However, under the circumstances of this case in which the Court has already vacated a Board decision partly due to finding that a VA examination report was inadequate, it appears that the most reasonable course of action. In accordance with the express request of the Veteran's attorney, the addendum sought will serve the purpose of ensuring that the medical conclusions presented are based upon the correct accurate factual predicates presented by the evidence of record. Accordingly, the case is REMANDED for the following: (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. The RO should secure for the record copies of the complete updated clinical records of all VA treatment or evaluation the Veteran has received for his left knee at VAMC Boise since May 2013. 2. The RO should thereafter forward the record (to include this remand) to the May 2013 VA examiner/opinion provider (Dr. John K. Dudek) for review and an addendum medical opinion. The addendum should clarify his earlier findings/diagnosis and offer an opinion addressing the nature and likely etiology of any diagnosed left knee disability. (If necessary to address the questions below, any required additional testing and examination should be arranged.) Specifically, the examiner should provide clarification responding to the following: Considering that the rationale of the May 2013 VA examination report repeatedly cited the fact that review of the claims-file revealed no post-service medical treatment for left knee disability prior to 2002 (other than gout in 1987), please discuss what impact (if any) the January 1998 VA medical report showing "mild swelling in left knee" has upon the medical opinions presented in the May 2013 VA examination report. Please specifically address (a) whether the Veteran's chronic left knee diagnoses include gout, and (b) whether any chronic left knee disability is at least as likely as not (a 50 percent or greater probability) related to his service, to include as resulting from duties that included parachute jumps or the known injury to the left ankle in 1956. The provider must explain the rationale for all opinions, to include citing to supporting factual evidence. If the May 2013 VA examiner (Dr. John K. Dudek) is not available to review the record and offer the opinion sought, the Veteran's claims file should be forwarded to another appropriate physician for review and such opinion. The examiner should identify (by medical diagnosis(es)) the Veteran's left knee disability(ies) and opine whether it is at least as likely as not (a 50 percent or better probability) that such disability(ies) is/are related to his service, to include as resulting from duties that included parachute jumps or the known injury to the left ankle in 1956. The provider must consider that the Veteran is competent to report when he experienced symptoms in the left knee and what the symptoms were, but that the Board has found his report of falling into a hole and twisting the left knee in 1965 while running from insurgent fire in Thailand to not be credible. The examiner must explain in detail the rationale for all opinions. 3. The RO should then review the record readjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his attorney 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 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). _________________________________________________ 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).