Citation Nr: 1333836 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 04-06 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to May 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in February 2003 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This case was the subject of a May 2013 Order of the Court of Appeals for Veterans Claims (Court), by which the Court granted a Joint Motion for Partial Vacatur and Remand (Joint Motion), and thereby partially vacated the Board's April 2012 decision in this matter and remanded the matter for further development and adjudication. The below action is directed in view of the Court's Order. The Virtual VA electronic claims processing system includes newly received VA treatment records, to include those of VA treatment from March 2003 to April 2012, received into the Virtual VA claims file in May 2012. These include records, not previously associated with the paper claims file, of treatment for left and right knee disability. 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 Newly received relevant records associated with the Virtual VA or paper claims file should be considered in readjudication of the claim on appeal and issuance of a supplemental statement of the case. As noted, the Virtual VA electronic claims processing system includes VA treatment records, to include those of VA treatment from April 2002 to April 2012. These records and any additional relevant VA records of treatment should be considered in readjudication of the Veteran's claim. These were added to the Virtual VA system in May 2012, after issuance of the Board's April 2012 decision in this appeal. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA treatment records are considered to be constructively contained in the claims folder and must be obtained before a final decision is rendered); 38 C.F.R. § 19.31 (supplemental statement of the case). On remand, the RO/AMC should seek to obtain any additional relevant records of treatment. See 38 U.S.C.A. 5013A(a)-(c). In the April 2013 Joint Motion, it was determined that that a VA medical opinion in which the reviewing physician asserted that the Veteran's right knee disorder did not cause or aggravate or permanently worsen his left knee disorder was not supported with an adequate rationale, and therefore was inadequate for rating purposes. It was requested that the Board obtain an addendum to the November 2011 VA medical opinion or a new VA medical opinion with reasoned medical explanations supporting the physician's findings and opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (neither a VA examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions; most of the probative value of a medical opinion comes from its reasoning). In light of the Joint Motion, the Board will request a new VA examination and opinion that takes into account newly received records of VA treatment. See 38 U.S.C.A. § 5103A(d). Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify all records of VA and non-VA health care providers who have treated him for left or right knee disability but that may not have been previously received into his VA claims file. After obtaining any appropriate authorizations for release of medical information, the RO/AMC should seek to obtain any potentially relevant and available records that have not been previously received from each health care provider the Veteran identifies. The records sought should include any relevant records of VA treatment from April 2012 forward. The Veteran should also be advised that with respect to private medical evidence he may alternatively obtain the records on his own and submit them to the RO/AMC. 2. Once all available relevant medical records have been received, make arrangements with the appropriate VA medical facility for the Veteran to be afforded an orthopedic examination for the purpose of obtaining a medical opinion as to whether it is at least as likely as not (whether there is a 50 percent or greater probability) that the Veteran's left knee disability is caused or aggravated (chronically worsened) by his service-connected right knee disability. As the Joint Motion as granted by the Court's May 2013 Order in this matter provided that the opinion should be rendered by a physician, the examination and opinion should be accomplished by a physician. The RO/AMC should send the claims file to the physician for review, and the physician should indicate that the claims file was reviewed. The physician should take a complete history from the Veteran as to the nature and onset of his left knee disability. If there is a medical basis to support or doubt the history provided by the Veteran, the physician should state this, with a fully reasoned explanation. The physician should provide a medical opinion as to whether it is at least as likely as not (whether there is a 50 percent or greater probability) that the Veteran's left knee disability is caused or aggravated (chronically worsened) by his service-connected right knee disability. In all conclusions, the examiner should identify and explain the medical basis or bases, with identification of the relevant evidence of record. The physician should provide a fully reasoned explanation for his or her opinions, based on established medical principles and his or her clinical experience and medical expertise. This matter was returned to the Board by the Court in May 2013 for lack of an adequate explanation for the medical opinion provided by a VA orthopedist in November 2011. It is critical that the physician provide a fully reasoned explanation for the opinion provided. 3. Readjudicate the issue on appeal. Readjudication should include consideration of newly received VA treatment records, to include those of treatment from April 2002 to April 2012, received into the Virtual VA claims file in May 2012. If the benefit sought remains denied, provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time for response. Thereafter, subject to current appellate procedure, the case must be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. 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). _________________________________________________ CHERYL L. MASON 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).