Citation Nr: 1338443 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 11-10 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1966 to June 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO). In October 2010, a hearing was held before a Decision Review Officer (DRO) at the RO. In October 2011, a Travel Board hearing was held before the undersigned. Transcripts of both hearings are associated with the Veteran's claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND The Veteran alleges that his right knee disability, to include osteoarthritis, is the result of a fall in service which resulted in the complete dislocation of his right patella. Service treatment records (STRs) confirm that he received treatment for a dislocated right patella in May 1968. The Veteran further alleges that he has a left knee disability caused by favoring his right knee and walking with a cane. The STRs are silent for any complaints, treatment, or diagnosis of a left knee disability, and he does not allege that such disability is directly related to the injury in service. The RO arranged for a VA examination to assess the Veteran's right knee disability in September 2009. However, the Board finds that the examination and medical opinion offered are inadequate for proper adjudication of the claim. Specifically, the examiner did not address the Veteran's contention that his patella dislocation in service weakened the knee, rendering it susceptible/prone to subsequent injury/disability. The stated rationale for the opinion (by a physician's assistant, endorsed by an internist) that the Veteran's "current knee discomfort" was unrelated to the injury in service is that the Veteran's last patella dislocation was in 1997; there was no further explanation. Notably, at the Travel Board hearing the Veteran provided credible testimony of postservice continuity/treatment (records of which are unavailable). He indicated that that his primary care physician had advised him that his injury in service predisposed him to a subsequent right knee injury. An orthopedist's opinion in this matter accompanied by a more detailed explanation of rationale (and addressing the specific contentions raised) is necessary for a proper adjudication of the Veteran's claims. The issue involving the left knee is inextricably intertwined with the right knee claim. Furthermore, at the hearing the Veteran testified that he receives ongoing VA treatment for his knees. The most recent VA treatment report of record is dated in February 2011. Updated records of treatment for his knee disabilities may contain pertinent information, are constructively of record, and must be secured. 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following action: 1. The RO should secure for the record copies of complete updated clinical records of all VA treatment the Veteran has received for his knees since February 2011. 2. The RO should afford the Veteran the opportunity to submit for the record a supporting opinion (with explanation of rationale) from the primary care physician who advised him that his right knee patella dislocation in service predisposed him to incur his current right knee disability (and that his left knee disability is secondary to the right knee disability).. 3. The RO should thereafter arrange for the Veteran to be examined by an orthopedist to determine the nature and likely etiology of his right and left knee disabilities. The entire record must be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following: a. Please identify (by medical diagnosis) each right and left knee disability entity found; b. Please identify the most likely etiology for each right knee disability entity diagnosed; specifically, is it at least as likely as not (a 50 percent or better probability), that such disability is related to the Veteran's knee injury/complaints in service? The examiner is asked to specifically comment on the proposed theory of entitlement that the injury in service (complete dislocation of the right patella) weakened the knee, and predisposed the Veteran to subsequent dislocation/and his current disability. c. Please identify the most likely etiology for each left knee disability entity diagnosed; specifically, is it at least as likely as not (a 50 percent or better probability), that such disability was either caused or aggravated by the Veteran's right knee disability? The examiner must explain the rationale for all opinions, with citation to supporting factual data and/or medical literature as appropriate. 4. The RO should then review the record and readjudicate the claims. If either remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ GEORGE R. SENYK 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).