Citation Nr: 1332517 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-26 388 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee. 2. Entitlement to service connection for right knee arthritis with meniscus tear, to include as secondary to the service-connected degenerative joint disease of the left knee. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1971 to December 1978, and from October 2001 to December 2003. The Veteran had additional Air National Guard service. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. A review of the Virtual VA paperless claims processing system and Veterans Benefits Management System does not reveal any additional documents pertinent to the present appeal with the exception of the brief filed by the Veteran's representative in September 2013. 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 Veteran underwent a VA examination in July 2007 to determine the severity of his service-connected left knee disability. In a February 2009 statement, the Veteran stated that his primary symptoms are weakness and lack of weight bearing ability. He further asserted that the degree of disability is not shown on flexion and extension testing. In a separate February 2009 statement, the Veteran stated that his left knee disability has gotten worse to the point that he may need surgical replacement. When evaluating musculoskeletal disabilities, VA must consider additional functional loss due to pain, weakness, excess fatigability, or incoordination associated with motion, to include with repeated use or during flare-ups. See 38 C.F.R. §§ 4.40, 4.45 (2010); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). In essence, the Veteran indicated that he experiences additional limitation beyond the measured range of motion and that his disability has worsened since the VA examination. Considering the Veteran's reports of worsening symptoms, as well as the length of time since the last examination, the Board finds that additional examination is warranted. See 38 C.F.R. § 3.327 (2012). The examiner should also specifically address any functional limitations on motion according to the DeLuca criteria. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). With regard to the Veteran's claim for entitlement to service connection for right knee arthritis with meniscus tear, the Veteran claims that his right knee disability is secondary to his service-connected left knee disability. An application for worker's compensation shows that the Veteran sustained an injury to his right knee in February 2005. The record indicates that the Veteran caught his clothing on an equipment rack and twisted his right knee. However, it appears that the worker's compensation records are incomplete. Therefore, VA should request from the U.S. Department of Labor the complete worker's compensation file associated with the Veteran's February 2005 workplace injury while employed by the Tennessee Air National Guard. In a June 2006 statement, submitted in connection with his claim for service connection for the left knee disability, the Veteran stated that his right knee was "overstressed" because he tends to "favor" it when compensating for the left knee. In September 2007, C.S. submitted a lay statement asserting that that the Veteran's "right knee popped loudly" in late 2004 when the Veteran shifted his weight to his right leg while they were lifting a radar receiver/ transmitter weighing over 80 pounds. Subsequently, the Veteran submitted a statement in December 2009 asserting that his right knee disability began prior to the worker's compensation injury. The Veteran underwent VA examination in July 2007 to evaluate the etiology of the claimed right knee disability. In the July 2007 VA examination report, the examiner concluded that she could not opine as to whether the right knee disability was due to a worker's compensation injury or overcompensation due to the service-connected left knee disability without resort to mere speculation. In Jones v. Shinseki, 23 Vet. App. 382 (2009), the Court held that, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Id. at 390. It must also be clear that the physician has considered "all procurable and assembled data." Id. (citing Daves v. Nicholson, 21 Vet. App. 46 (2006)). Finally, the physician must clearly identify precisely what facts cannot be determined. Id. In this case, although the VA examiner in July 2007 indicated that the history of the Veteran's right knee disability was vague, the opinion lacked a discussion of whether the Veteran's service-connected left knee disability aggravated the Veteran's right knee disability. The examiner did not address the lay statements of record regarding the onset of the right knee disability. Therefore, upon remand, the examiner must clearly state whether the Veteran's service-connected left knee disability was a factor in causing or aggravating his right knee disability. The Veteran's worker's compensation injury and the lay statements of record regarding overcompensation should be specifically addressed. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain the Veteran's complete worker's compensation file from the U.S. Department of Labor associated with his February 2005 workplace injury while employed by the Tennessee Air National Guard, including any administrative decisions (favorable or unfavorable) and the medical records upon which the decisions were based. 2. Schedule the Veteran for a VA examination to determine the nature and severity of his left and right knee disabilities. The claims folder should be made available to the examiner, and the examination report should include discussion of the Veteran's medical history and assertions. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. Range of motion testing (in degrees) must be conducted. When citing range of motion, the examiner should clearly state at which degree pain begins. The examiner should measure the range of motion of the left knee joint after repetitive motion and state whether there is any additional loss of motion due to pain, fatigue, weakness, lack of endurance or incoordination. Any additional loss of motion should be recorded in degrees. The examiner is specifically requested to state whether there is functional impairment due to pain on motion. The examiner must state whether it is at least as likely as not (probability of 50 percent) that the Veteran's service-connected left knee disability caused or aggravated his right knee disability. If the examiner finds that the Veteran's right knee disability could be caused by multiple factors, the opinion must state whether left knee degenerative joint disease is among those factors, and to what degree it caused or aggravated the right knee disability. The February 2005 worker's compensation injury and the lay statements of record regarding overcompensation should be specifically addressed. A complete rationale for any opinion expressed should be provided. 3. After any additional development deemed necessary is accomplished, the Veteran's claim should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Veteran 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). _________________________________________________ H. N. SCHWARTZ 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).