Citation Nr: 1333541 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 12-09 433 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Larry D. Schuh, Attorney ATTORNEY FOR THE BOARD M. Caylor, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps (USMC) from January 1993 to March 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board has reviewed both the physical claims file and the Virtual VA electronic claims file. 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 contends he is entitled to service connection for a left knee disability incurred during active service while carrying furniture at Guantanamo Bay Naval Base. See, e.g., April 2012 statement. The Board remands the claim on appeal for additional development because the VA medical examiner's opinion is inadequate. "[O]nce the Secretary undertakes the effort to provide an examination when developing a service-connection claim, . . . he must provide an adequate one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An adequate medical opinion must consider the veteran's prior pertinent medical history and include clear conclusions, supporting data, and a reasoned medical explanation. Barr, 21 Vet. App. at 311. In October 2010, VA provided the Veteran an examination to determine whether he had a current diagnosis of a knee disability and, if so, whether a possible nexus existed between any current knee disability and the Veteran's active service. The examiner assessed the Veteran with a "normal left knee" and opined that "the [V]eteran's current knee problem was not caused by or a result of [his] military service." As a rationale, the examiner stated that there was "a lack of chronicity," as "[t]here [we]re absolutely no medical records after his discharge in 1996 to indicate that he continued to have knee problems." Initially, the Board notes that, one day after the opinion was rendered, VA received pertinent medical evidence from the Texas Department of Criminal Justice that indicates the Veteran was in fact treated for knee pain between 2006 and 2010. As the VA examiner's rationale was that a lack of medical treatment records after 1996 failed to establish chronicity, their absence from the claims file prior to the examination and opinion is especially relevant. In addition, the Board finds the opinion is inadequate for several reasons. First, the VA examiner did not provide a reasoned medical explanation for his opinion, as he did not explain why continuous chronological treatment notes were necessary for a diagnosis of degenerative joint disease or indicate whether delayed onset was possible. Second, the VA examiner failed to clearly indicate whether the Veteran had a current diagnosis of degenerative joint disease. While he assessed the Veteran with a "normal left knee" and stated that "physical findings on the knee plus x-rays would not indicate that the [V]eteran should have a significant problem with the knee," he also reported that x-rays showed a "small extosis of the distal medial femoral metaphysis [that] would be considered extremely minor degenerative changes," though "not symptomatic." Third, the VA examiner appeared to cite inaccurately or ignore pertinent prior medical evidence from the Veteran's service treatment records (STRs). The VA examiner found the STRs showed only that there was either a possible injury or a diagnosis of patellofemoral syndrome and a possibility in May of 1994 that there was a question of a meniscal tear, and that a September 1995 orthopedic treatment note showed medical personnel did not think there was a whole lot wrong with the knees. In fact, the STRs contained several objective physical findings and showed the Veteran was assessed with "possible joint effusion" and a left knee strain in May 1994; a "[p]robable meniscus tear" in June 1994, for which the he was to be "scheduled for aspiration [and] surgery"; a "[p]atellar contusion" in September 1994; and patellar femoral syndrome in September 1995. Fourth, the VA examiner appeared to largely disregard lay testimony regarding the Veteran's then-current pain, pain on motion, and pain since separation from service particularly while climbing stairs and walking significant distances. The VA examiner was not free to disregard the Veteran's lay statements and speculate regarding the Veteran's subjective experiences during the examination and during and following service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide a negative opinion). The Board therefore finds VA should provide the Veteran with a new medical examination and opinion on the basis of direct service connection. The Board also notes that, in late August 2013, the Veteran submitted pertinent medical evidence from the Dallas VA Medical Center (VAMC) dated from June 1997 to January 2013. VA should ensure that on remand, all relevant VA medical records that are not already of record are obtained prior to providing the Veteran with a new medical examination and opinion. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. First, undertake appropriate development to obtain any outstanding, pertinent medical records, to include from the Dallas VAMC and the Texas Department of Criminal Justice that are not already of record. 2. Then, provide the Veteran with a VA examination, by an examiner with sufficient expertise, to determine the nature and etiology of any left knee disability. Provide the examiner with the claims file, including any pertinent evidence in Virtual VA that is not already in the claims file. The examiner should review the claims file and perform all indicated studies. The examiner should provide an opinion, based on examination results and the record, regarding whether it is at least as likely as not (a 50 percent or greater probability) that any current left knee disability had its onset in or is otherwise etiologically related to the Veteran's active service. The opinion must consider all pertinent medical history as well as any competent lay evidence and contain both a detailed description of the disabilities and a complete medical rationale. The examiner is reminded that the Veteran is competent to report about factual matters about which he had firsthand knowledge, including experiencing symptoms during or after service, reporting to sick call, and undergoing treatment. 3. The RO or AMC should undertake any additional development it deems warranted. 4. Then, the RO or AMC should readjudicate the claim on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should receive a Supplemental Statement of the Case and an opportunity to respond. If necessary, the case should then be returned to the Board for further appellate action. 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). ______________________________________________ S. L. Kennedy 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). Department of Veterans Affairs