Citation Nr: 1334515 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 09-23 013A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of left ankle sprain. 2. Entitlement to service connection for osteophyte, left foot. 3. Entitlement to service connection for left knee disability. 4. Entitlement to service connection for right knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from August 1977 to August 1981 and from September 1982 to August 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 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 seeks service connection for chronic residuals of left ankle sprains and a left foot osteophyte (bone spur). At a VA examination in August 2008, a VA examiner provided a diagnosis of status post acute ankle sprain, left ankle, resolved without residual. The Board notes that contrary to the examiner's statement that the left ankle sprain is 'resolved without residual,' the current record shows ongoing left ankle complaints and symptomatology. For instance, a March 2008 a private record shows the Veteran sought treatment for a complaint of chronic left ankle pain from an old injury. A March 2008 X-ray noted degenerative changes in the tarsal region of the left ankle. A July 2009 private treatment record shows a finding of chronic lateral ligament instability, possible intra-articular osteochondral lesion of left ankle. The July 2009 record contains a comment from the treating physician that "if the sprains occurred while on active duty then I believe they would be service-related." The August 2008 VA examiner also provided a diagnosis of status post osteophyte excision at calcaneocuboid joint, left foot. The examiner opined that the left foot osteophyte is less likely related to the acute ankle sprain in service, but failed to include a rationale for this opinion. The examiner also failed to indicate whether the left foot osteophyte was directly caused by an injury, event or disease in service. For these reasons, the August 2008 VA examination report is inadequate and a new examination is required. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran also contends that he has chronic left and right knee disabilities that are attributable to his military service, including his duties as an aircraft mechanic. Service treatment records show that on clinical examinations in March 1977 and in August 1982, for the purposes of enlistment, the Veteran's lower extremities were normal. No clinical findings or diagnoses pertaining to either knee were noted on the examination reports. The Veteran was treated for a dislocated right patella in October 1991. Patellofemoral syndrome and capsulitis of the right knee were noted in March 1992. Osgood-Schlatter's disease and tendonitis of the left knee were noted in May and June 1992. On the Veteran's report of medical history completed in January 1994, the reviewing physician noted that the Veteran reported recurring left knee pain and extreme recurrent pain in the right knee. Following service, tendonitis of the left knee was noted in October 1999 and chrondromalacia of the right knee was noted in January 2001. In March 2008, a private physician noted the Veteran had complaints of bilateral knee pain off and on for 20 years since military service. In July 2009 a private physician provided clinical findings of Osgood-Schlatter's disease in the left knee, as well as painful tibial tubercle and intra-tendinous ossicles of the left knee. The physician stated that the Osgood-Schlatter's disease probably started at age 12 or 13 but that the Veteran also had repetitive trauma induced injury to the left knee consistent with his being on his knees constantly in the Air Force doing aircraft maintenance. At a VA examination in August 2008, an examiner diagnosed "bilateral Osgood-Schlatter's disease with acute episodes of tendonitis while in military service. Osgood-Schlatter's disease is a developmental disorder and is not caused by or related to military service or aggravated by military service." No rationale was provided for this opinion. A VA examiner in December 2009 diagnosed "1. Bilateral patellofemoral syndrome with intermittent acute tendonitis in service. Resolved without residuals. 2. Osgood-Schlatter's disease. Developmental. Not caused by or related to military service. 3. Mild [degenerative joint disease] bilateral knees. Not caused by, related to, or aggravated by #1. Consistent with natural aging and body habitus." No rationale was provided for this opinion. The VA examination reports do not include discussion of the Veteran's complaints of knee pain in service and following service, or his specific contentions that his knee disabilities are related to the physical aspects of his duties as an aircraft mechanic. In a July 2009 statement, the Veteran reported that performance of his military duties included excessive kneeling. On the Veteran's substantive appeal (VA Form 9), he further explained that his duties involved climbing ladders, bending, squatting, lifting, and working on his knees. The opinions also do not adequately address the disability of Osgood-Schlatter's, which has been described as 'developmental.' As the VA examination reports are inadequate with respect to the claimed bilateral knee disabilities, a new examination is required. Barr, supra. Additionally, any outstanding, pertinent VA and non-VA medical records that contain information pertinent to the Veteran's claims must be obtained. 38 C.F.R. § 3.159(c)(2) (2013); Bell v. Derwinski, 2 Vet. App. 611 (1992). Finally, as the Veteran contends that his left foot osteophyte is related to the residuals of left ankle sprains, he must be provided with notice of the criteria by which to establish service connection on a secondary basis. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran notice of the criteria necessary to substantiate a claim of service connection on a secondary basis. 2. Contact the Veteran and ask that he identify all sources of VA and non-VA treatment for his claimed disabilities. Ask him to provide, or authorize VA to obtain, all non-duplicative treatment records pertaining to these disabilities. All efforts to obtain any identified records and any negative responses must be fully documented in the file. 3. Schedule the Veteran for an appropriate VA examination to determine the etiology of any currently diagnosed disabilities of the left ankle, left foot and right and left knees. The entire claim file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. The examiner must address each of the following: a) Is it at least as likely as that any diagnosed left ankle and left foot disabilities (to include any osteophytes and/or degenerative changes shown by X-ray) had onset in service or, is otherwise attributable to service? b) Is it at least as likely as that any diagnosed left foot disability, to include the current diagnosis of status post osteophyte excision at calcaneocuboid joint, left foot, is caused or aggravated by a current left ankle disability or any service-connected disability? c) Is it at least as likely as that any diagnosed left and/or right knee disability other than Osgood-Schlatter disease (to include patellofemoral syndrome and degenerative joint disease) had onset in service; or, is otherwise attributable to service; or, with regard to degenerative joint disease, manifested within a year of service discharge? d) With respect to Osgood-Schlatter disease, the examiner must offer an opinion as to whether it is at least as likely as not that the Veteran's Osgood-Schlatter disease is related to service. (e) The examiner must also offer an opinion as to whether there is clear and unmistakable evidence that Osgood-Schlatter disease existed prior to active service and, if so, whether Osgood-Schlatter disease was clearly and unmistakably NOT aggravated by the Veteran's active service. The examiner should cite to any evidence of record that demonstrates that this disability clearly and unmistakably existed prior to service. (f) The examiner must also provide an opinion as to whether Osgood-Schlatter disease is a congenital or developmental defect or a disease. (g) If the examiner determines that Osgood-Schlatter disease constitutes a congenital or developmental defect, the examiner must state whether is it at least as likely as not that any identified superimposed disease or injury is related to the Veteran's periods of active service. The examiner is advised that the term "aggravation" means a permanent worsening of the underlying condition beyond the natural progress of the disorder. In providing the requested opinions, the examiner must consider the Veteran's statements regarding the treatment for knee pain and injuries in service, his contentions regarding the physical requirements of his aircraft mechanic duties, and his statements regarding a continuity of symptomatology since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Then readjudicate the appeal. If any benefit remains denied, issue an appropriate Supplemental Statement of the Case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ D. JOHNSON Acting 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).