Citation Nr: 1335093 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 13-03 641 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for disabilities of the knees. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION Information on file shows that the appellant was ordered to active duty for training (ACDUTRA) which was to begin on November 12, 1992, and to last approximately 18 weeks. However, a DD 214 shows that she had active service from November 12, 1992, to March 26, 1993. Thereafter, she served in the reserves until August 2007. This matter comes before the Board of Veterans' Appeals (Board) from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's appeal, a review of which does not reveal any additional documents pertinent to the present appeal with the exception of the transcript of a May 2013 videoconference with the undersigned Veterans Law Judge. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). At the May 2013 videoconference the appellant testified that she had no problems with either knee prior to her military service and that at no time during any period of military service did she ever seek or received treatment for or complain of problems with her knees but that she had injured her knees while running, including having strained her knees. She twisted a knee at least once during Advanced Individual Training (AID) at Ft. Harrison. On these occasions she treated her knee herself, often by applying ice or wraps. Her knee problems had always been greater in her right knee, than in the left knee. More recently, she had had injections in both knees of Cortisone and Orthovisc (with the latter being a kind of liquid cartilage, see page 7 of the transcript). A private MRI of her right knee in January 2004 had revealed a torn meniscus and problems with her patella, for which she had surgery at a private medical facility. She had been given a permanent profile following her right knee surgery (in 2004). She had not complained about her left knee to her private physician. Her knee problems were so bad that she now sometimes used crutches. She was willing to report for a VA examination, if such was needed (see page 16). The appellant has testified and reported in statements that she did not seek inservice treatment for either knee because this was discouraged by military authorities and that obtaining such treatment was difficult. However, a service clinical record of November 1992 shows that she did seek treatment for unrelated complaints (of headaches and light headedness). The record indicates that the Veteran had never sought or received VA treatment. A private March 2004 right knee MRI revealed an osteochondral defect in the patellofemoral compartment and mild generalized chondromalacia. X-rays in March 2004 of both knees revealed mild bilateral tricompartmental osteoarthritis and mild lateral patellar subluxation in the left knee. Private clinical records show that in April 2004 the appellant had a right knee arthroscopy with partial medial meniscectomy and abrasion chondroplasty for a medial meniscus tear and chondral lesion of the patella. An October 2004 Physical Profile shows that the appellant was limited as to her running. In the appellant's VA From 21-526, Application for Compensation, in June 2010 she reported that she had not yet seen a physician for her left knee. Following notification in June 2010 by the RO in accordance with the Veterans Claims Assistance Act of 2000 (VCAA), a Report of General Information reveals that by telephone the appellant indicated she was trying to obtain supporting documents. She expressed concern about her left knee because, although she was seen for her right knee, she had not been treated for her left knee even though she had pain in the left knee. In July 2010 the appellant reported that she had submitted the only documents available from the Hahnemann University Hospital and she had no more information or evidence to submit. However, she subsequently submitted records from the Rothman Institute which show that in October 2010 it was reported that she was seen for bilateral knee pain. She had "no specific history of injury, but has always been very active." Her left knee had bothered her for years and more recently, in the last several months, she began to develop locking and catching. A June 2011 statement from Dr. C. D. of the Rothman Institute shows that he had treated the appellant since October 2010 and she currently had bilateral knee pain. She had had right knee surgery in 2004. The current diagnosis was bilateral patellofemoral arthritis, as shown by arthroscopic pictures in 2004 and an MRI from last year. She now received cortisone injections, physical therapy, and activity modification. She denied having knee pain prior to her time in active duty in the military. It was more likely than not that her current knee pain was a result of injuries sustained in service. Records provided to the physician by the appellant had been reviewed. Subsequent treatment records from January to March 2012 from the Rothman Institute reflect continued treatment for bilateral degenerative joint disease of the knees. In the March 2013 Statement of Representative it was noted that despite the favorable private medical opinion on file a VA examination had not been obtained. As to this, in determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims (Veterans Court) has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Based on the foregoing, the Board is of the opinion that the appropriate steps should be taken to allow the appellant the opportunity to submit, or provide information to allow VA to obtain, any additional records of private medical treatment or evaluation for her knees and to provide her a VA nexus examination. Accordingly, the case is REMANDED for the following action: 1. The appellant should be given an opportunity to identify any healthcare provider (including VA) who treated her for any knee symptoms since the private clinical treatment in March 2012. After securing any necessary authorization(s) from her, obtain all identified treatment records. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The appellant must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After all outstanding records have been associated with the claims file, the appellant should be afforded an appropriate VA examination to determine whether any current disability of either knee is related to her military service. The examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the claimed disability, including arthritis or other pathology, of either knee was incurred during military service. In providing the opinions requested, the examiner must provide an explanation (rationale) for any and all conclusions reached. The examiner must address the following: Is there any medical reason to accept or reject the proposition that had the Veteran had injuries of her knees during service from extensive running, which either alone or together with any undocumented sprains of the knees, could have lead to her current disabilities of the knees? If the response is in the positive, is it at least as likely as not (a 50 percent or greater probability) that such occurred? What types of signs or symptoms would have been caused by the type(s) of injury(ies) herein at issue? Could an injury of the knees from running during service have been mistaken for sprains of the knees but were a precursor to the appellant's current conditions of the knees? Please note that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. The term "more likely" and "at least as likely" support the contended causal relationship; the term "less likely" weighs against the contented causal relationship. Please answer the questions posed with use of the terms "at least as likely", "more likely", or "less likely." Send the claims folder to the examiner for a review of the appellant's pertinent medical history, to facilitate making these determinations. The rationale for all opinions expressed should be discussed. If any of the opinions, as requested above, cannot be provided without resort to speculation, the examiner should explain why, if possible. 3. Following the completion to the extent possible of the development requested above, the RO should readjudicate the claim for service connection for disabilities of the knees. If the claims remain denied, the appellant and her representative should be provided a Supplemental SOC (SSOC) and afforded the appropriate period of time to response. 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). _________________________________________________ MARJORIE A. AUER 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).