Citation Nr: 1335163 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 06-35 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for left knee disability, to include as secondary to the service-connected right knee disability. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Veteran provided testimony at a January 2007 videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In an August 2007 decision, the Board denied the Veteran's service connection claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2008 Order, the Court granted the parties' Joint Motion for Remand, vacated the Board's August 2007 decision, and returned the case to the Board. In May 2008, the Board remanded the case for further development and adjudication. Subsequently, in a June 2009 decision, the Board again denied the claim. The Veteran again appealed the case to the Court and in a September 2010 Order, the Court granted the parties' Joint Motion for Remand, vacated the Board's June 2009 decision, and returned the case to the Board. In February 2011 and April 2012, the Board remanded the Veteran's claim for due process concerns. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In the most recent, April 2012 remand, the Board instructed the RO to issue a supplemental statement of the case regarding the Veteran's claim of entitlement to service connection for a left knee disability, to include as secondary to the service-connected right knee disability. While the RO issued a supplemental statement of the case in November 2012, the Veteran's attorney has since made additional argument. Notably, in a September 2013 statement, the Veteran's attorney argues that the October 2008 VA examination report and March 2009 addendum opinion report (on which the Board relied in its June 2009 decision denying the claim) are inadequate. Initially, the Veteran's attorney argues that the March 2009 addendum opinion regarding aggravation of the left knee disability by the right knee disability is confusing and needs clarification. Specifically, it was noted that the March 2009 addendum opinion indicates that gait disturbance in one joint may result in soft tissue soreness in the opposite joint, but not boney changes. The Veteran's attorney finds this statement confusing given that the Veteran has been previously diagnosed with patellofemoral syndrome and chondromalacia of the left knee, and given that Dorland's Medical Dictionary defines chondromalacia as pain "caused by the softening of any cartilage." Moreover, the Veteran's attorney argues that while the examiner explicitly stated that the Veteran's right knee condition had resolved and that it had, at most, resulted in a temporary exacerbation of the left knee pain, the examiner failed to further discuss the Veteran's left knee pain, its intensity or its duration, and whether such pain was a symptom of the Veteran's chondromalacia or patellofemoral syndrome. The Veteran's attorney requests that a new VA examination be conducted in order to obtain an adequate etiology opinion which discusses prior positive medical opinions, provides sufficient detail of the current disability of the left knee, and contains a sufficient supporting rationale. Additionally, in the September 2013 letter, the Veteran's attorney indicates that since May 2009 the Veteran has submitted additional private medical evidence which documents current diagnoses of both knees. A thorough review of the paper claims file and Virtual claims file reflects that no such private medical evidence has been received and associated with the claims file since May 2009. Moreover, neither the February 2011 Board remand nor the November 2012 supplemental statement of the case references any private medical evidence submitted after May 2009. As such, a remand is necessary to obtain such private medical records. The Board also notes that in letters from the Veteran's attorney, dated in February 2011, July 2011, November 2012, December 2012, and May 2013 the Veteran's attorney refers to argument the Veteran submitted on December 2, 2010. The nature of the argument submitted by the Veteran on December 2, 2010 is not specified by the Veteran's attorney in any of the above-referenced letters. A thorough review of the paper claims file and Virtual claims file reflects that no such December 2, 2010 argument is of record. Moreover, neither the February 2011 Board remand nor the November 2012 supplemental statement of the case references any December 2010 argument. Therefore, this evidence/argument should be obtained on remand. The Board also finds that a new VA examination should be conducted in order to assess the nature and etiology of any current left knee disability. The examiner should be requested to review the entire claims file, to include the March 2006 private medical opinion in favor of the Veteran's claim from Dr. Lomax, as well as any additional private medical and lay evidence described above, which should be obtained on remand as described above. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter requesting that he provide the private medical evidence referred to in his attorney's September 2013 correspondence, as well as the argument his attorney indicated (in letters dated in February 2011, July 2011, November 2012, December 2012, and May 2013) that the Veteran submitted on December 2, 2010. The RO should also request that the Veteran provide the names, addresses and approximate dates of treatment for any health care providers, including VA, who may possess additional records pertinent to treatment for his left knee disability that are not currently on file, to specifically include the health care provider referred to in his attorney's September 2013 letter (which states that the Veteran submitted private medical evidence since May 2009 that shows current diagnoses of left and right knee disabilities). After obtaining any necessary authorization from the Veteran for the release of his private medical records, the RO/AMC will obtain and associate with the file all records, VA and private, that are not currently on file. If the RO/AMC is unsuccessful in obtaining any such records identified by the Veteran, it should inform the Veteran of this and request him to provide a copy of the outstanding medical records if possible. 2. Schedule the Veteran for an appropriate VA examination for the purpose of ascertaining the nature and likely etiology of any currently diagnosed left knee disability, to include his patellofemoral syndrome of the left knee (diagnosed by the October 2008 VA examiner), degenerative joint disease of the left knee (diagnosed in June 2007 by private physician Dr. Meyer) and patellofemoral chondromalacia of the right knee (diagnosed in February 2006 by private physician Dr. Lomax). The claims folder, to include a copy of this Remand, should be made available to the examiner for review in conjunction with rendering the opinion. Based on the examination and review of the record, the examiner is asked to address following: Specify all current left knee diagnoses for the record. The examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that any currently demonstrated left knee disability (to specifically include the February 2006 diagnosis of patellofemoral chondromalacia, the June 2007 diagnosis of degenerative joint disease, and the October 2008 diagnosis of patellofemoral syndrome) is aggravated (permanently worsened beyond the natural progression of the disability) by his service-connected right knee disability. The examiner must comment on the March 2006 private opinion stating that the Veteran's left knee problems are directly related to the right knee injury, as well as any other pertinent medical or lay evidence or opinion added to the record as a part of this remand. A rationale for all opinions expressed should be provided. 3. The Veteran is hereby notified that it is his responsibility to report for the scheduled VA examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 4. The RO/AMC must then readjudicate the claim and, thereafter, if the claim on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ U. R. POWELL 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).