Citation Nr: 1330728 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-16 808 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a left knee disorder, including as secondary to a service-connected right knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from August 1966 to September 1986. The appeal comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Veteran testified at a video conference hearing before the Board in May 2013. A transcript of that hearing is contained in the claims file. While the Veteran had been previously afforded a hearing before the Board, mechanical difficulties precluded obtaining a transcript of that prior hearing, and that prior hearing was thus rendered a nullity for purposes of the Board's appellate adjudication. The Veteran was afforded the May 2013 hearing in substitute. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been raised in hearing testimony before the undersigned in May 2013, but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and it referred to the RO for appropriate action. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran was afforded a VA examination for compensation purposes in August 2008 addressing the left knee disorder. That examiner diagnosed a cortical defect with subcortical marrow edema in the left knee, suggestive of osteonecrosis or early osteochondritis dissecans of the left knee, as supported by magnetic resonance imaging scan in April 2007. The VA examiner in 2008, considered the question of the left knee disorder having been caused by the Veteran's service-connected right knee disorder, but opined that no such causation was shown. The examiner noted service connection was in effect for right knee derangement, the right knee was stable. The Veteran testified before the Board in May 2013, that the left knee disorder resulted from injury at work for the Post Office in 1999, but that his left knee was already considerably weakened prior to that injury, which contributed to the patellar injury that resulted. The Veteran also contended that the left knee injury resulted from added stress from supporting the right knee. The Veteran also submitted two private medical opinion letters, both dated in February 2011, to the effect that the left knee condition was at least in part due to off-loading from the right knee, and that the weakened state of the left knee led to the injury of the left knee in 1999. There remains sufficient question as to whether a left knee disorder was caused or contributed to by the Veteran's service-connected right knee disorder, to warrant a new VA examination to review relevant evidence and provide informed medical opinions addressing the questions raised, including resolving conflicts between the August 2008 VA opinion and the private opinions provided in February 2011. Where equivocal evidence is presented, a duty is thus created to seek clarifying evidence. Obert v. Brown, 5 Vet. App. 30, 33 (1993). Once VA provides an examination, the examination must be adequate or VA must notify the veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. This must include both VA and private treatment. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. After the above development is completed, the Veteran must be afforded a new VA orthopedic examination to determine whether the Veteran's left knee disorder was caused or aggravated, to any degree, by his right knee disorder by an examiner other than the one who conducted the prior VA examination in August 2008 to avoid pre-judgment of the examination or the appearance of impropriety. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. All pertinent findings must be reported in detail. All indicated tests and studies must be conducted. After review of the evidence of record and the clinical examination, and with consideration of the Veteran's statements, the examiner must address the likelihood that any left knee disorder is related to any degree to the Veteran's right knee disorder, based on causation or aggravation. In so doing, the examiner must consider the Veteran's self-report and documentation of a workplace injury to the left knee in 1999, to include the Veteran's assertions that this injury was a result of prior weakening of the knee due to off-loading of weight from the right knee, which was itself disabled and in a weakened state over a period of time. The examiner must consider the Veteran's work at that time as a letter carrier for the Post Office. The examiner must address the two private medical opinion letters, both dated in February 2011 and both contained within the evidence of record, which support a causal link between the left knee disorder and the right knee disorder. The examiner must also consider prior examination and treatment records, including the prior VA examination addressing the left knee in August 2008. The examiner is advised that the August 2008 prior VA examination is considered inadequate because the rationale for the opinion provided which is against a causal link between the right knee disorder and left knee disorder was based on current stability of the right knee, without consideration of the status of the right knee over prior periods. Contrarily, the Veteran has alleged that when his right knee was in a more impaired state this required off-loading onto the left knee weakened the left knee and led to the workplace injury to the left knee in 1999. The examiner must provide opinions addressing questions of both causation and aggravation of any left knee disorder to any degree by any right knee disorder. A complete rationale for all opinions must be provided. If the examiner cannot provide any of the requested opinions without resorting to speculation, this must be stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The examination report must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 4. Thereafter, the RO must ensure that the development above has been completed in accordance with the remand orders, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claim. If the benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).