Citation Nr: 1337700 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 10-21 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a right knee disability, to include as secondary to service-connected patella-femoral arthritis, left knee. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1977 to June 1980 and from October 1980 to November 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA and VBMS systems to ensure review of the totality of the evidence. 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 After having carefully considered the matter, the Board believes the appellant's claim must be remanded for further development. The Veteran attended a November 2008 examination to determine the nature and etiology of his right knee disorder. The examiner diagnosed the Veteran with gonalgia with femoropatellar arthrosis. The examiner did not provide an opinion regarding the likelihood of the Veteran's right knee disorder being etiologically related to active duty service, or the likelihood that the Veteran's right knee disorder was caused by, or a result of, the Veteran's service-connected left knee disability. The examiner merely commented that "[b]ased on the overloading of the right knee joint for over 2 1/2 years, it cannot be ruled out that the right-side knee joints developed because of the left side knee complaints." In short, the examination provides no conclusion as to whether the Veteran's currently diagnosed right knee condition is a result of active duty service, or was caused or aggravated by the Veteran's service-connected left knee. As a result, the Board finds that the November 2008 examination is inadequate, and a new examination is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (explaining that when VA determines to provide an examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that the opinion must be adequately supported and explained). Accordingly, the case is REMANDED for the following action: 1. Send notice to the Veteran requesting that he identify any other relevant treatment that he is receiving for his knees and request that he forward any additional records to VA to associate with the claims file or provide VA with authorization to obtain such records. If the Veteran is receiving regular VA treatment, obtain the updated medical records and associate them with the claims file. 2. Once all of the available records have been associated with the claims folder, schedule the Veteran for a new VA examination with an examiner of appropriate expertise. The claims file and a copy of this remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examination report must indicate that the claims file was reviewed in conjunction with the report. The examiner should provide a medical opinion on the etiology of the Veteran's right knee disorder. Based on a review of the record, the examiner should: a) Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the right knee disorder is causally or etiologically related to the Veteran's period of active service, to include the Veteran's in-service injury in June 1978. b) Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the right knee disorder was caused by, or is aggravated by the Veteran's service-connected left knee disability. If the service-connected left knee disability aggravates (i.e., permanently worsens) a right knee disability, the examiner should identify the percentage of disability which is attributable to the aggravation. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Any evaluations, studies, or tests deemed necessary by the examiner should be performed and any such results must be included in the examination report. A complete rationale for any opinion expressed must be provided. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence, or information would be useful in rendering an opinion. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship or a finding of aggravation; "less likely" weighs against the claim. The record indicates that the November 2008 VA examination was originally recorded in German and then later translated. If translation is again necessary, extra care should be taken to ensure that directives of this remand are fully understood and performed in both the VA examination and the resulting opinion. 3. After the requested records review and opinion are completed, the report should be reviewed to ensure complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the reviewing personnel. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After undertaking any other development deemed appropriate, the RO will re-adjudicate the issue on appeal. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further 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). _________________________________________________ DAVID L. WIGHT 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).