Citation Nr: 1329012 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 06-15 489 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran served on active duty from September 1985 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2012, the Veteran testified during a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the undersigned identified the issues on appeal, and noted what pertinent evidence was outstanding and what evidence might assist in substantiating the claims. Additionally, the Veteran through his testimony, with the assistance of his representative, demonstrated actual knowledge of the elements necessary to substantiate the claims. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). A copy of the hearing transcript has been associated with the claims folder. 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 The Board regrets additional delay, but a remand is required before the Veteran's remaining claim can be properly adjudicated. The Veteran asserts that he has right and left knee disabilities that are the result of marching and physical training during service, along with added weight that he was required to carry in his military occupational specialty as a radio communicator. STR's are absent for any treatment or diagnoses referable to left or right knee disorders. However, the Veteran's August 1992 service separation examination records report his complaints of knee pain with deep knee bends, and that "kneeling hurts". VA outpatient treatment records in July 2008, show the Veteran's complaints of intermittent bilateral knee pain. An X-ray report indicated that there was no evidence of acute bilateral knee osseous injury or evidence of significant degenerative disease. At a November 2011 medical examination of the knees performed for VA purposes, an examiner concluded that there was no pathology of the knees to render a diagnosis. The diagnoses were right and left knee condition(s); there is no diagnosis because there is no pathology to render a diagnosis. However, it is imperative to point out that in the physical examination the examiner indicated that extension of the Veteran's right knee ended at 30 degrees, and extension on the left knee ended at 45 degrees, both with pain. Flexion of the right and left knee were both to 140 degrees with pain. It is imperative to point out that for VA purposes, normal range of knee motion is from 0 degrees (on extension) to 140 degrees (on flexion). See 38 C.F.R. § 4.71, Plate II. Under 38 C.F.R. § 4.71, Diagnostic Code 5261, the criteria for evaluating limitation of extension of a leg, a rating of 10 percent requires limitation of extension to 10 degrees. A rating of 20 percent requires limitation of extension to 15 degrees. A rating of 30 percent requires limitation of extension to 20 degrees. A rating of 40 percent requires limitation of extension to 30 degrees, and a rating of 50 percent requires limitation of extension to 45 degrees. Here, curiously and notwithstanding the diagnosis of no knee disability as rendered by the examiner in November 2011, the Veteran's service separation examination knee complaints were not mentioned in examination report, suggestive that the Veteran's service records were not considered. Further while the examiner reported that there was no right or left knee pathology the examiner did not provide any explanation for the abnormal range of motion testing for the knees that was shown, at least with respect to extension of the right knee, apparently limited to 30 degrees, and 45 degrees on the left. VA regulations indicate that there is disablement at those ranges of motion for extension. This is not to mention how the Veteran's reported pain on motion of the knees is associated with the abnormal findings on knee extension, if at all. It is apparent that additional information is required here to address these discrepancies. The Board must point out that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Also, assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). Accordingly, the case is REMANDED for the following action: 1. If still available, return the claims file to the examiner of the November 2011 VA compensation examination for an addendum opinion, specifically to address the underlying cause and signficance, if any, of the findings from the examination showing the Veteran had extension of the right knee that ended at 30 degrees, and extension on the left knee ended at 45 degrees, both with pain. (For VA purposes, normal range of knee motion is from 0 degrees (on extension) to 140 degrees (on flexion). 38 C.F.R. § 4.71, Plate II. Under 38 C.F.R. § 4.71, Diagnostic Code 5261, the criteria for evaluating limitation of extension of a leg, a rating of 10 percent requires limitation of extension to 10 degrees. A rating of 20 percent requires limitation of extension to 15 degrees. A rating of 30 percent requires limitation of extension to 20 degrees. A rating of 40 percent requires limitation of extension to 30 degrees, and a rating of 50 percent requires limitation of extension to 45 degrees). The examiner should review the Veteran's service treatment records, to include those August 1992 service separation examination records that report his complaints of knee pain with deep knee bends, and that "kneeling hurts." If, and only if, this examiner now believes the Veteran has a left and/or right knee disability, the examiner is requested to provide an addendum or supplemental opinion regarding the likelihood (very likely, as likely as not, or unlikely) the Veteran's current right and/or left knee disorder(s) is etiologically related or attributable to his active military service. If, for whatever reason, this examiner is no longer available or able to provide additional comment (another addendum opinion), then obtain additional comment from someone else equally qualified. In this eventuality, it may be necessary to have the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed or, instead, this requested additional medical comment can be provided just with review of the claims file. If the new examiner believes another examination is necessary, schedule another VA examination. To facilitate making this important determination, the claims file, including a complete copy of this REMAND, must be made available to and reviewed by the examiner for the pertinent medical and other history. All necessary diagnostic testing and evaluation needed to make these determinations should be performed. It is also essential the examiner discuss the medical rationale for his/her opinions, whether favorable or unfavorable, if necessary citing to specific evidence in the file. If it is determined that another examination is needed, the Veteran is hereby advised that his failure to report for this additional examination, without good cause, may have detrimental consequences on this pending claim. 38 C.F.R. § 3.655. 2. Then readjudicate the remaining claim for service connection for a bilateral knee disorder. If the claim continues to be denied, send the Veteran and his representative a Supplemental Statement of the Case (SSOC) and give them opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these remaining claims. 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). 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). _________________________________________________ K. PARAKKAL 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).