Citation Nr: 1334134 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 08-00 061 ) 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. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from December 1983 to December 1991. This matter came to the Board of Veterans' Appeals (Board) from a July 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in March 2011 and February 2013 for further development. At that time, the Board also remanded a claim of service connection for bilateral pes planus. The benefit was granted by rating decision in April 2013 and is no longer in appellate status. 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 is claiming service connection for a left knee disability due to falling on concrete in service. Although the Board regrets further delay, the case must be returned to the RO for another medical opinion. The April 2013 examiner noted December 1984 x-ray findings and in-service complaints in her report, but she does not appear to have considered them into her rationale. See Stegall v. West, 11 Vet. App. 268 (1998). Further, as will be explained below, another examination is necessary to determine whether the Veteran has a current disability or if at any time during the course of the appeal he had a disability that is related to service (since the most recent examination report notes knee symptoms that have resolved). Service treatment records include a December 1984 Emergency Care and Treatment record showing that the Veteran went to the emergency room (ER) for morning stiffness and post-exercise pain the left knee without swelling. He complained of crepitus in the left knee. Upon examination, there was full range of motion without crepitus, no ligamentous laxity and no click. X-rays were within normal limits. The impression was history of pain and stiffness in the left knee without demonstrable instability. An October 1986 Emergency Care and Treatment record shows that the Veteran was later seen for complaints of a left knee injury. He was in pursuit of a suspect "when he tripped on a curb and fell on his knee." Upon examination, the doctor noted mild soft bruise, and edema to the left superior patella area with tenderness over medial collateral ligament (MCL). X-rays were within normal limits. The assessment was left knee contusion. Post service, VA treatment records show that in August 2006, the Veteran felt something pop when he jumped playing basketball. Left knee examination was normal. The Veteran was told to rest and heat his quadriceps strain. A June 2007 VA examination included that examiner's opinion that chondromalacia of the left knee (apparently diagnosed in February 2007 MRI study) most likely "not related to military service." The examiner did not provide a rationale for the opinion. Pursuant to the Board remand, the Veteran was afforded another VA examination in April 2011. After interviewing and examining the Veteran, and after reviewing the claims file, the VA examiner stated: The veteran did sustain trauma and a fracture to the lower 1/3 of the left tibia and fibula but no direct injury to the left knee. During his military service he did sustain injury to the left knee when he fell onto concrete with his left knee. The knee was swollen and had signs of bruising. The knee x-ray was normal at that time. The knee healed and he did not seek any care for his knee but arthritis of the knee was incidentally found on x-ray when he sought care for a left quadricepts [sic] muscle injury. It is my medical opinion that the veteran's left knee arthritis is less likely as not caused by or a result of his military injury but rather is a result of daily living. In February 2013, the Board remanded the claim for another VA opinion since the examiner had referenced what appeared to be an in-service record of left knee arthritis found incidentally when the Veteran sought care for a left quadriceps injury. At the time, the Board was unable to locate a service treatment record reflecting such; and the examiner was asked to rectify the inconsistency with the December 1984 and October 1986 x-rays showing negative findings for arthritis. The examiner was also asked to include discussion of the December 1984 complaints of left knee pain and October 1986 fall on the left knee. Pursuant to the remand, an April 2013 VA medical opinion was provided by a different examiner. The examiner elicited medical history in which the Veteran clarified that arthritis found incidentally on x-rays was in 2006 (after service). The examiner noted that December 1984 and October 1986 service treatment records show that x-rays of the knees were within normal limits. She also noted an April 2011 x-ray showing degenerative joint disease of the patellofemoral joint otherwise negative radiographic study of the left knee. However, when rendering an opinion, she simply reiterated the April 2011 VA examiner's opinion verbatim, with no additional comment. The examiner referred to the December 1984 x-ray findings and in-service complaints in the report, but did not incorporate these in her rationale as requested by the Board when it asked for a thorough explanation for an opinion. Thus, the Board believes that additional development is necessary. See Stegall, 11 Vet. App. 268 The April 2013 VA examination report noted diagnoses of "pain & stiffness without demonstrable instability, acute, remote hx, resolved" and "blunt trauma, contusion, acute, resolved." For date of diagnoses, the examiner listed December 1984 and October 1986, respectively. There was no diagnosis of any current left knee disability. While it appears that the Veteran does not currently have a disability, the requirement that a claimant have a current disability before service connection may be awarded for that disability, is satisfied when a claimant has a disability at the time a claim for VA disability is filed or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Private and VA treatment records, and VA examination reports show various left knee disorders since the date of the receipt of claim in January 2007. The June 2007 VA examiner noted chondromalacia of the left knee. The April 2011 VA examiner noted x-ray evidence (June 2007) of mild degenerative changes at the patellofemoral joint and diagnosed such. An August 2012 private treatment record from Dr. G.P.M shows bilateral pain in the joint involving lower leg and x-ray evidence of moderate degenerative joint disease in the left knee. A medical opinion is required to determine if the Veteran currently (or at any time during the course of the appeal) has a knee disability that is related to service. Accordingly, the case is REMANDED for the following action: 1. The claims file should be forwarded to the April 2013 VA examiner for review and an addendum opinion addressing the questions posed. If the April 2013 VA examiner is no longer available or determines that the opinion cannot be provided without an examination, the Veteran should be scheduled for an appropriate examination. The claims folder and all pertinent records must be made available to the examiner. Based on a review of the record, the examiner should answer the following and render an opinion as to the following: (a) Is there any current diagnosis of a left knee disability? (b) If there is no currently diagnosed left knee disability, did the Veteran have a left knee disability at anytime during the course of the appeal from January 2007 (the date his claim was received)? (c) For any diagnosed left knee disability identified in (b), is it at least as likely as not (a 50% or higher degree of probability) that the left knee disability is causally related to service, to include the in-service December 1984 left knee complaints and the October 1986 injury after falling on concrete? The examiner must provide reasons for the opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 2. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim. If any benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board, if in order, for further appellate review, if otherwise in order. The appellant 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). _________________________________________________ M. E. LARKIN 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).