Citation Nr: 1332197 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 05-29 469 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from June 1970 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied service connection for a right knee disability. A videoconference hearing was held in January 2008 before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. The Board remanded this matter in March 2008, July 2009, and March 2011 for further evidentiary development. In October 2011, the Board issued a decision denying the claim of service connection for a right knee disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims ("Court"). In February 2013, the Court issued a Memorandum Decision vacating the Board's October 2011 decision and remanding the matter for the action noted below. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Reason for Remand: To obtain an adequate medical opinion in compliance with Court's Memorandum Decision. As noted by the Court, the Veteran was afforded several VA examinations and opinions were obtained related to his right knee claim; however, these opinions were not found to be adequate. The Board in July 2009 discussed the inadequacy of the April 2008 VA examination report. In particular, the examiner erroneously noted that the Veteran's separation examination was within normal limits and that he "did not complain of any problems" at that time, despite the notation at the time of separation of "trick" or locked knee with a diagnosis of multiple traumas to the right knee with pain. The examiner also reported that there was "no chronicity evidenced since leaving service in 1971 until 2004," despite VA and private clinical records spanning an extensive time period from 1951 to 2008, which showed the manifestation of right knee complaints in 2004, but with reports of a history of an injury to the knee while serving in Vietnam. Due to these factual errors in the examiner's rationale, the Board found this opinion to be of limited probative value and remanded for a new VA examination and opinion. In September 2009, the Veteran again underwent VA examination. As noted by the Board in its March 2011 remand, the VA examiner ignored the Veteran's competent assertions that he suffered from right knee symptoms since his service discharge. The Board noted that the concept of continuity of symptomatology focuses on continuity of symptoms, not treatment. Savage v. Gober, 10 Vet. App. 488, 496 (1997). Thus, the Board found the examiner's conclusion that a link between the Veteran's current knee disability and his service cannot be made without medical evidence showing continuity to be faulty, and remanded the matter for an addendum opinion, which appropriately considered all of the Veteran's lay assertions. In March 2011, the same VA examiner issued an opinion related to the Veteran's claim. The Court has found this opinion to be inadequate, and a failure to meet the Board's prior remand directives. In particular, the examiner recognized that the Veteran currently has degenerative joint disease (DJD) of the right knee and that DJD "typically develops gradually and progresses slowly over a long period of time," except when there has been an injury to the joint, which "may accelerate the onset and progression of DJD." The examiner then determined that if the Veteran's DJD were due to an injury of 33 years prior, then "the expectation is that the degenerative changes and thus the symptoms would have more rapidly progressed," which "would have prompted the patient to seek medical treatment on a regular basis beginning shortly after he left active duty." The examiner went on to provide a negative nexus opinion on the basis that the Veteran was able to work as a welder for many years after service, which was inconsistent with an early and more rapid progression of the knee condition. Second, she stated that it is "unknown" whether the Veteran had a right knee injury in more recent civilian life. Finally, the examiner noted that the Veteran also has DJD in the left knee, which has no history of trauma, and found that the "finding of slowly progressive onset of DJD in bilateral, paired, weight-bearing joints is more consistent with osteoarthritis, or DJD due to constant wear and tear over several years, such as due to recurrent heavy labor," and not "traumatic degenerative arthritis due to a prior injury of a unilateral joint." Initially, the Court noted that the examiner failed to consider the Veteran's assertions as to symptoms experienced over time, in particular the Veteran' lay testimony at his 2008 Board hearing. The Court found that this omission made the opinion inadequate, as well as demonstrated a failure on the part of the Board to ensure that prior remand orders were complied with. Further, the Court found the opinion to be internally inconsistent in that the examiner at one point noted that the Veteran's clinical course after 2005 was consistent with "rapidly progressing symptoms," but later determined that the DJD was consistent with a "slowly progressive onset of DJD in bilateral, paired, weight-bearing joints." Moreover, the Court noted that the examiner stated the possibility of a post-service knee injury, and in doing so ignored the Veteran's hearing testimony during which he stated that he had not experienced any additional knee injury. Accordingly, the Court found the VA examiner's opinion to be inadequate, and found the Board's reliance on this opinion, therefore, to be improper. 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). For these reasons, the Board finds (and the Court found) that the Board's prior remand directives were not substantially complied with making additional remand necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). The Board also notes that the Federal Circuit Court has issued a decision since the February 2013 Memorandum Decision, which has a bearing on this case. The Veteran is clearly diagnosed, via x-ray evidence, with osteoarthritis/DJD of the right knee. Service connection for certain chronic diseases, such as arthritis, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2013). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this regard, where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Thus, the opinion related to continuity of symptoms must be made in accordance with the structure for such analyses as set out in Walker. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA medical examination for the purpose of clarifying the nature and etiology of his current right knee disability. The claims folder should be made available to and reviewed by the examiner, and such review should be reflected on the examination report. The report of examination should include a complete rationale for all opinions rendered. In providing the requested rationale, the examiner is advised that he or she must consider the entire record on appeal, including both the clinical evidence of record as well as the Veteran's description of his post-service right knee symptoms, both in his statements to VA and in his Board hearing testimony. The examiner must discuss the Veteran's reported combat injury. Furthermore, the Veteran has asserted that he sought treatment for his knee pain between the time of his service discharge and 2004. He also described his symptoms of his knee disability to include pain, swelling, and popping which he has continued to suffer from since his in-service injury. It should be noted that he is competent to attest to factual matters of which he had first-hand knowledge, to include his symptoms. The examiner should then state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's current right knee disability is causally or etiologically related to his military service. The examiner is also asked to discuss medically known or theoretical causes of degenerative joint disease, as distinguished from how it could develop from other causes, in determining the likelihood that the current right knee disorder was caused by his in-service injury as opposed to some other cause. The examiner must also discuss the in-service notations related to the right knee, and the notations within one year of the Veteran's separation from service, which may be indicative of initial manifestations of right knee arthritis. The examiner must then discuss whether the current arthritis as shown on X-ray examination may have initially been noted in service, and whether the arthritis manifested within one year following separation. The rationale for each opinion expressed must be provided. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) The examiner should not invoke the phrase "without resort to mere speculation" without first explaining the basis for such an opinion. The rationale for all opinions expressed should be provided in a legible report. 2. Thereafter, the RO/AMC should readjudicate the claim of entitlement to service connection for a right knee disability. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The Veteran 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). _________________________________________________ KATHLEEN K. GALLAGHER 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) (2013).