Citation Nr: 1329164 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 07-26 125 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1975 to November 1981, and from July 1987 to January 2003. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. During the course of the appeal, original jurisdiction over the Veteran's claims file was transferred to the Montgomery, Alabama RO. The Board remanded these issues in February 2013 for additional development. 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 March 2013, the Board remanded the Veteran's claims for service connection for left and right knee disabilities for further development, to include an examination. VA provided the Veteran with an examination to determine the etiology of any right and/or left knee disabilities in July 2013; unfortunately, the resulting report is inadequate to adjudicate the claims. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes to provide an examination, the examination, and ensuing report, must be adequate). The July 2013 examiner diagnosed the Veteran with a "torn right meniscus," and opined that "[t]here is . . . inadequate documentation of ongoing treatment and/or disability for either knee to relate his present condition to his military service." The examiner's report is inadequate for rating purposes, as it appears to ignore the right and left knee diagnoses of record. Specifically, the Veteran has diagnoses of degenerative arthritis of both the right and left knees, supported by x-ray evidence; reports documenting the arthritis are in the claims file. As the examiner appeared to disregard these findings, it is clear to the Board that the opinion is based on an inaccurate factual basis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (holding that a medical opinion that is not factually accurate, fully articulated, or based on sound reasoning, is not probative). At the very least, even if the examiner has determined that the Veteran does not have arthritis of the knees, he must provide a rationale as to why he discounts the medical evidence of record showing disabilities of the left and right knees. Further, the Veteran had surgery to repair a torn meniscus in his right knee during the pendency of the appeal; although the examiner acknowledges the fact of the surgery and diagnosed the Veteran with a torn meniscus, he failed to address the etiology of the Veteran's meniscus pathology. The examination report is also insufficient in this regard. Id. Finally, contrary to the opinion, there are treatment records for the Veteran's knees of record, in addition to the fact that the Veteran has competently and credibly described knee pain that began during, and has existed since, service. The examiner must take those records and the Veteran's statements into consideration when setting forth his opinion. Thus, on remand, VA must obtain an addendum opinion addressing the current knee disabilities and whether those disabilities are etiologically related to active duty. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the examiner who performed the July 2013 examination. That examiner must review the claims file, any relevant records in the Virtual VA record, and this remand; the ensuing report should indicate that such a review occurred. The examiner must provide an addendum opinion concerning the etiology of the Veteran's knee disabilities. Specifically, the examiner must acknowledge the current diagnoses of left and right knee arthritis (unless the examiner has a medical basis for finding that the Veteran does not have arthritis of the knees, and in that case, the examiner must explain the bases for such an opinion). Further, the examiner must accede to the fact that the Veteran has a current disability of the meniscus, as evidenced by the 2007 surgery. Thereafter, the examiner should opine whether it is at least as likely as not (a 50 percent probability or greater) that any current disability of the left and/or right knees began during service, is the result of an event or injury during service, or is otherwise etiologically related to the Veteran's service. The examiner must provide a full and complete rationale for all opinions provided. If he is unable to reach a conclusion on any question presented without resort to speculation, he must explain why such an opinion would be speculative. If the July 2013 examiner is unavailable, a similarly qualified physician should provide the requested opinion. Only if a medical professional determines that a new examination is necessary should the Veteran be asked to report for an examination. 2. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If any report is deficient in any manner, the RO must implement corrective procedures at once. 3. Then, the RO/AMC should readjudicate the claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and the representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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). _________________________________________________ MICHAEL D. LYON 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).