Citation Nr: 1335164 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 07-15 218 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected left knee disability. 2. Entitlement to service connection for a bilateral foot disability, to include as secondary to a service-connected left knee disability. REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Attorney WITNESSES AT HEARING ON APPEAL Veteran and A.M. ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from November 1974 to July 1975. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from August and December 2006 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In July 2010, the Veteran testified at a Board hearing at the RO before the undersigned; a transcript of the hearing is of record. In a September 2010 decision, the Board denied the Veteran's claims and he, in turn, appealed to the United States Court of Appeals for Veterans Claims (Court). In March 2011, counsel for VA's Secretary and the Veteran's attorney (the parties) filed a Joint Motion for Vacatur and Remand with the Court. By Order dated later that month, the Court granted the motion, vacating the Board's decision and remanding the matter to the Board for further proceedings consistent with the Joint Motion. In September 2011, the Board remanded the claims for additional development. The development has been completed and the case has been returned to the Board for appellate review. The Veteran's paper claims file and electronic folder in Virtual VA and the Veterans Benefits Management System (VBMS) have been reviewed in conjunction with the disposition of the issues on appeal. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action, on his part, is required. REMAND Regrettably, an additional remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). Specifically, the Board finds that VA should assist him in obtaining his military personnel records and his previously identified private medical records. Thereafter, supplemental medical opinions should be obtained. In this case, the Veteran alleges that he injured both knees and feet when he fell from a rope during basic training. Service treatment records document that he hyperextended his left knee in November 1974 and was diagnosed with mild chondromalacia. He is currently service-connected for residuals of a left knee injury with degenerative arthritis; however, service connection is not in effect for any right knee or foot disability. The Veteran alternatively claims that his right knee and bilateral foot disabilities are secondary to his service-connected left knee disability. The Veteran's service treatment records are silent as to any injuries involving his feet or right knee during service. At his July 1975 discharge examination, his lower extremities and feet were clinically normal. He reported that he was in "excellent health," but noted a history of having "trick" or locked knee. The Veteran maintains that he was medically discharged from service because his knee and foot injuries prevented him or made it difficult for him to march and perform the duties required for his advanced infantry training (AIT). He alleges that he has had consistent foot and knee problems since he was medically discharged from service. His DD Form 214, Report of Separation from Active Duty, indicates that the Veteran was honorably discharged, but does not relay the authority or reason for his discharge. Given the Veteran's contentions, the Board finds that the Veteran's military personnel records should be obtained. In addition, a review of the claims file indicates that the Veteran underwent right knee arthroscopic surgery in 1994 and bilateral knee surgery in recent years; however, no attempt has been made to obtain these private records. His records from the Social Security Administration (SSA) contain a September 1997 private medical record that indicates he reported he underwent arthroscopic right knee surgery three years previously. Other records also note a history of knee surgery in 1994. Records pertaining to the 1994 surgery have not been obtained. In October 2009, magnetic resonance imaging (MRI) reports indicate that the Veteran was referred from Dr. D.C. with complaints of bilateral knee pain. A November 2009 referral form indicates that Dr. D.C. referred the Veteran to Dr. D.A., an orthopedic surgeon at L.P.O. & S.M. (Lake Pointe). There is an undated note from Lake Pointe requesting pre-operative surgical clearance for left total knee arthroplasty. In November 2009, the Veteran indicated that he was scheduled for surgery in November or December. The January 2012 VA examination report has conflicting information as to when the Veteran had surgery. Initially it was reported that he underwent a total right knee replacement three years previously in 2009. Later in the report, it was noted that he had surgery in December 2011. Given the conflicting information in the claims file and the fact that these records may contain relevant information regarding his claims, the Board finds VA should make additional attempts to obtain these records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(1). As noted above, the January 2012 VA knee examination report contains conflicting information regarding the Veteran's history of right knee surgery. The medical report is also troublesome because the examiner's rationale for his negative opinion was based, in part, on the conclusion that the Veteran did not have a major problem until the replacement of his right knee in 2009. Without the underlying medical records, the examiner's basis for this conclusion is unclear. The January 2012 VA foot examination is also inadequate. The examiner opined that the Veteran's peripheral neuropathy of the feet was "less likely than not" caused by or the result of active military service. The examiner's rationale, however, was based entirely on the absence of any foot conditions during service. The parties to the Joint Motion specifically noted that the prior medical opinions that relied solely on the absence of contemporaneous in-service treatment were inadequate. Rather, the Joint Motion suggested that an examiner express medical rationale that would "assist the Board in determining whether the type of fall described by [the Veteran] could have caused his putative continued symptoms." Accordingly, the case is REMANDED for the following actions: 1. Obtain a complete copy of the Veteran's military personnel records. 2. Contact the Veteran and request that he identify the name, address, and approximate beginning and ending dates of all VA and non-VA health care providers who have treated him for his right knee and foot disabilities. Specifically, he should be asked to identify the health care provider who conducted the right knee arthroscopic surgery in 1994 and to provide the necessary authorization for release of information from this provider. He should also be requested to provide authorization for the release of information from Dr. D.C. and Dr. D.A. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 3. After the development requested in items 1 and 2 has been completed, return the claims file to the VA examiner who conducted the January 2012 VA examinations (or another examiner if unavailable) for preparation of an addendum opinion. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's electronic folder) should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. The reviewing clinician should specifically address the following questions: A) Hypothetically, what is the likelihood that the type of fall the Veteran reported happened in service (falling 10 or 15 feet from a rope on an incline) could have caused right knee degenerative joint disease and bilateral foot peripheral neuropathy? Please discuss the medical principles involved. B) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's right knee degenerative joint disease manifested in service, within one year of discharge from service, or is otherwise related to his reported fall in service? Please provide a complete explanation for the opinion that is based on the facts and medical principles. If the absence of contemporaneous right knee complaints during service is the basis for the opinion, the examiner should discuss whether the type of injury reported by the Veteran or the type of injury that would cause degenerative joint disease would be of the type that treatment would have been sought and noted in the medical record or at his July 1975 discharge examination. C) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's bilateral foot peripheral neuropathy manifested in service or is otherwise related to his reported fall in service? In rendering this opinion, please discuss the likely etiology of the Veteran's peripheral neuropathy. Please provide a complete explanation based on the facts and medical principles. If the absence of contemporaneous foot complaints during service is the basis for the opinion, the examiner should discuss whether the type of injury reported by the Veteran or the type of injury that would cause peripheral neuropathy would have been of the type that treatment would have been likely sought and noted in the medical record or at his July 1975 discharge examination. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If any of the benefits sought on appeal remain denied, in whole or in part, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims must be afforded expeditious treatment. The law requires that all claims 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. 2013). _________________________________________________ K. A. KENNERLY 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).