Citation Nr: 1328342 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 08-24 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left knee disability, to include on a secondary basis to the service- connected right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from July 1961 to July 1965. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2009, the Veteran, accompanied by his authorized representative, appeared at a hearing held before the undersigned sitting at the RO in St. Petersburg, Florida. A transcript of that hearing has been associated with the claims file. In July 2010, the Board denied the Veteran's petition to reopen a claim of entitlement to service connection for a left hip disability and reopened a claim of entitlement to service connection for a left knee disability. The left knee disability was then remanded for further development. The Board notes that, in addition to the physical claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the physical claims file and will proceed with review of the claim based upon all relevant evidence. 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 Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). In July 2010, the Board remanded the Veteran's left knee claim for further adjudication, to include affording him a VA examination. In the decision, the Board noted the Veteran had been diagnosed with bilateral chondromalacia and bilateral subpatellar crepitation while in service and that a July 1993 VA physician stated that the Veteran experienced bone involvement of both knees as the result of in-service injury. An October 1989 VA examiner diagnosed a congenital leg length difference. A December 1986 letter from a private physician associated the Veteran's left knee symptoms with his service-connected right knee disability. Additionally, a November 2006 VA treatment note suggested that the Veteran's left knee symptoms with his service- connected right knee disability. February 2001 and September 2003 VA examination reports reflected a normal left knee. An April 1997 VA examiner and an April 2007 VA examiner, who also authored an August 2007 addendum, opined that left knee symptomatology was not related to the right knee disability. Although the claims file contained multiple medical opinions as to the extent and origin of the Veteran's left knee symptoms, the Board found that none of the opinions reflected a review of all the pertinent medical evidence or discussed direct, secondary, or aggravational theories of entitlement. Therefore, the matter was remanded for additional examination. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (medical examination reports must contain not only clear conclusions with supporting data, but a reasoned medical explanation connecting the two). As instructed in the July 2010 remand, the RO was asked to provide an examination in which the examiner was to (i) author an opinion that refers to the relevant evidence of record, to include the May and November 1964 service treatment records showing diagnoses of subpatellar crepitation and chondromalacia of the bilateral knees, the 1989 diagnosis of a congenital leg length discrepancy, and medical evidence suggesting that left knee symptoms exist secondary to the right knee disability, (ii) state whether the evidence clearly and unmistakably demonstrated that a left knee disorder preexisted service and, if so, state whether such preexisting left knee disability clearly and unmistakably was NOT aggravated by such service, to include as due to injury of the right knee, and (iii) if the examiner did not find that a left knee disability clearly and unmistakably preexisted active service, express whether it is at least as likely as not that a left knee disability was directly incurred in active service and, if not, whether it is at least as likely as not that a left knee disability was proximately due to the service-connected right knee disability. In this regard, the Board observed that the April 2007 VA examiner did not discuss the 1989 diagnosis of a congenital leg length difference or address the possibility that an in-service injury had aggravated a pre- existing condition. Moreover, the April 2007 VA examination report stated that "service medical records (were) silent for significant report to sick call for a left knee...injury." While true, the Board found that such statement failed to acknowledge the two in-service diagnoses pertaining to the left knee and thus called into question whether the opinion offered by the examiner was predicated on a clear understanding of the facts in the case. Upon remand, the Veteran was provided a VA examination dated in October 2010. The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. The examiner stated that the service medical records documented reports to sick call for right knee pain but were silent for left knee injury or treatment. The examiner noted that the Veteran developed left knee pain in the past 10 years without any specific mechanism of injury. The examiner stated that the Veteran attributed this to the way he walked from his service- connected right knee. X-rays indicated minimal tricompartment degenerative changes of both knees; articular surface of the patella showed no obvious subchondral irregularity to suggest chondromalacia. After examination, the examiner opined that the Veteran's osteoarthritis of the left knee was not permanently aggravated by right knee injury slip and fall accident. The examiner stated that the Veteran's left knee osteoarthritis was an expected normal aging outcome that was neither adjunct nor aggravated by the Veteran's service-connected right knee condition. The Veteran's x-rays and physical examination were consistent with aging expectations in a sixty-six year old individual. The examination report, however, did not address the remand directives outlined above. As such, the matter must be remanded. In this regard, the Board notes that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Upon remand, the RO should associate with the Veteran's claims file records of the Veteran's treatment for his claimed disability. This should include updated treatment records from VA. The Veteran should also be afforded an opportunity to submit additional medical evidence relevant to his claim that may not be associated with the claims file. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the VCAA, VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the Veteran's claims file, that have treated him since service for his claimed disability. This should specifically include updated treatment records from the VA. The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. The Veteran may submit medical records directly to VA. 2. Provide the Veteran's claims file to a health care provider of suitable background and experience (but not to the individual who conducted the 2010 examination). The examiner must provide an opinion as to whether or not the Veteran currently has a left knee disability that was either caused, or aggravated, by his active duty service or by the service-connected right knee disability. The following considerations will govern the review: a. The claims folder and a copy of this remand will be made available to the examiner, who must specifically acknowledge receipt and review of these materials in any report generated. b. After reviewing the claims file, the examiner must author an opinion that refers to the relevant evidence of record, to include the May and November 1964 service treatment records showing diagnoses of subpatellar crepitation and chondromalacia of the bilateral knees, the 1989 diagnosis of a congenital leg length discrepancy, and medical evidence suggesting that left knee symptoms exist secondary to the right knee disability. c. The examiner must first state whether the evidence clearly and unmistakably demonstrates that a left knee disorder preexisted service. If so, the examiner must then state whether such preexisting left knee disability clearly and unmistakably was NOT aggravated by such service, to include as due to injury of the right knee. If the examiner does not find that a left knee disability clearly and unmistakably preexisted active service, he must express whether it is at least as likely as not that a left knee disability was directly incurred in active service. If not, the examiner must further state whether it is at least as likely as not that a left knee disability is caused by the service-connected right knee disability or, if not, whether it has been aggravated (permanently worsened beyond the natural progress of the disorder) by the right knee disability. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. d. The examiner is asked to explain the medical basis or bases for the opinion. A rationale must be provided for any findings rendered and any medical treatises referenced by the examiner must be cited. If the examiner is unable to render an opinion without resort to speculation, he or she should explain why and so state. 3. Following the above actions, review and readjudicate the Veteran's claim. If the benefit sought remains denied, the Veteran must be issued an appropriate supplemental statement of the case and afforded the opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by attending a requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). _________________________________________________ ERIC S. LEBOFF 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).