Citation Nr: 1334830 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 11-19 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a left knee disability, to include as secondary to a right knee disability. 2. Entitlement to an initial rating in excess of 10 percent for right knee disability. REPRESENTATION Appellant represented by: Elizabeth F. Lunn, Attorney ATTORNEY FOR THE BOARD A. Lech, Associate Counsel INTRODUCTION The Veteran had active service from September 1967 to July 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In connection with this appeal the Veteran was scheduled to testify before the Board at a videoconference hearing at the RO in January 2013. The Veteran did not appear at the scheduled hearing, and did not provide good cause for not appearing. Therefore, his hearing request is deemed to have been withdrawn. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. The appeal is REMANDED to the RO. REMAND The Board finds that additional development is required before the Veteran's claims of entitlement to an initial rating in excess of 10 percent for a right knee disability and entitlement to service connection for a left knee disability, to include as secondary to a right knee disability, can be decided. The Veteran claims that he has right and left knee disabilities as a result of a motor vehicle accident in which he was involved in 1969, while in active service. The accident resulted in a right patella fracture. The Veteran contends that his service-connected right knee disability causes him pain and discomfort, prevents him from walking far, and limits his range of motion, thereby warranting a disability rating in excess of 10 percent. Additionally, the Veteran asserts that the motor vehicle accident which fractured his right knee also caused his left knee disability, as he is forced to place more weight on his left knee due to his right knee disability. The Veteran's service medical records show that he was injured in a motor vehicle accident in September 1969, fractured his right patella, and that the fracture was internally fixed with a wire loop. After surgery, the Veteran wore a cast for five and a half weeks and was treated with range of motion and resistance exercises. After being hospitalized for 72 days, he was returned to limited duty, was placed on physical profile, and was supposed to be reevaluated by the orthopedic clinic a month following his release. On his July 1970 separation examination the Veteran did not report any problems with his knees, and was noted not to have any knee problems upon clinical examination. A review of the record shows that the Veteran was seen several times for knee complaints between 2008 and 2010 at a VA Medical Center (VAMC), and that he complained of issues related to both knees. The Veteran was diagnosed with arthralgia of the knee (the records do not specify which knee or knees the diagnosis refers to). The record also contains an October 2008 radiology report. After taking an X-ray of the Veteran's right knee, the radiologist diagnosed moderately severe osteoarthritis and osteoporosis of the right knee. In July 2009, the Veteran was provided a VA examination of his right knee in conjunction with his claim for an increased rating. An addendum to that examination is dated in August 2009. The examiner diagnosed degenerative joint disease, noting that X-rays taken in October 2008 at the VAMC showed moderately severe osteoarthritis of the right knee. The Veteran stated that the right knee pain resolved following surgery and rehabilitation, and reappeared in 1980. The examiner noted that the Veteran complained of pain, weakness, stiffness, swelling, locking of the knee, and not being able to walk or stand more than 10 to 15 minutes at a time before experiencing pain. The Veteran stated that increased activity caused flare-ups. The examiner noted that the right knee affected the Veteran when he had to get in and out of the bathtub, and slowed him down and caused him problems at his construction job, which he no longer had at the time of the VA examination. The examiner noted that the Veteran walked with eversion, with a slow gait, and put a little more weight on the left. The examiner noted that the range of motion in the right knee was 0 degrees to 110 degrees, with pain at the end range of full extension and flexion. The examiner did not address on the Veteran's complaints of left knee problems and did not opine as to their status or etiology. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c)(4) (2013); Robinette v. Brown, 8 Vet. App. 69 (1995). When available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board recognizes that the Veteran has already been provided a VA orthopedic examination with respect to his service-connected right knee disability in July 2009. That examination is somewhat stale, and very likely not a good picture of the state of the Veteran's right knee disability. The examination also did not examine the Veteran's left knee, for which he now seeks secondary service connection. Moreover, in view of the Veteran's statements that his right knee disability caused him problems at work, the new examination should include specific findings regarding any functional limitations associated with the Veteran's service-connected right knee disability, including whether that disability impacts his ability to obtain and maintain gainful employment. 38 C.F.R. § 4.10 (2013). Furthermore, the Veteran also contends that service connection is warranted for a left knee disability because it developed secondary to his service-connected right knee disability. To establish entitlement to service connection for a disability on a secondary basis, there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. When aggravation of a non-service-connected disability is proximately due to or the result of a service-connected disorder, the disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1997); 38 C.F.R. § 3.310(b) (2013). Therefore, the Veteran should be provided a new VA examination to determine the etiology of any current left knee disabilities, including whether any diagnosed left knee disability is due to the service-connected right knee disability. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify and provide authorization for VA to obtain medical records from any non-VA health care providers for treatment of right or left knee disabilities. Obtain any identified records. If the records cannot be obtained, notify the Veteran and provide him the opportunity to submit the records. 2. Obtain all pertinent VA medical records, not yet associated with the claims file. 3. Then, schedule the Veteran for a VA examination of knees. The examiner must review the claims file and should note that review in the report. Any necessary studies or tests should be conducted. The examiner should provide the following information: (a) Identify all left knee disabilities and opine whether is at least as likely as not (50 percent or greater probability) that each disability is the result of injury or disease incurred in or aggravated during the Veteran's military service. (b) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any left knee disability was caused by the service-connected right knee disability. (c) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any left knee disability has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected right knee disability. If aggravation is found, attempt to quantify the degree of additional disability resulting from the aggravation. 38 C.F.R. § 3.310 (2013). (d) Report range of motion of the right knee, expressed in degrees. Make specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, or incoordination associated with the knees. If pain on motion is observed, the examiner should indicate the point at which pain begins. The examiner should also indicate whether, and to what extent, the Veteran experiences functional loss of the right and left knees due to pain or any other symptoms during flare-ups or with repeated use. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. (e) Indicate whether there is recurrent subluxation or lateral instability of the right knee, and if so, the severity of any recurrent subluxation or lateral instability. 4. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Harvey P. Roberts 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).