Citation Nr: 1338462 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 11-20 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for residuals of a shrapnel wound to the left knee to include degenerative joint disease and soft tissue foreign body. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2012, the Veteran testified at a Travel Board hearing held before the undersigned Veterans Law Judge, and a transcript of the hearing has been associated with his claims file. The issue on appeal has been characterized as noted above following the hearing in order to more accurately identify the Veteran's claim. 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 Additional development is required prior to Board review. While the further delay of this case is regrettable, due process and duty to assist considerations require such action. The Veteran seeks service connection for residuals of left knee shrapnel wound incurred during combat. The Board notes that the Veteran is in receipt of a Purple Heart medal based on injury during combat service in Vietnam, and as such his lay statement as to injury is accepted. See 38 U.S.C.A. § 1154(b). At his hearing before the undersigned, the Veteran described being on a Navy ship in a canal in Vietnam when he was hit with shrapnel during an ambush. His crew had to get out of the boat and onto the bank where the enemy then fled. He could not walk after getting hit. After that, he was put back on the boat, taken to base camp and treated. The doctor told him he would not do surgery because the shrapnel may work itself out. The Board finds the Veteran's testimony to be fully credible. The record reflects that the Veteran sought treatment in about 1973 for the knee, but was told there was nothing that could be done. He thereafter did not get treatment for many years even though the knee bothered him. VA examination of the knee in July 2010 revealed that the Veteran had worked as a truck driver and retired in 2009. The assessment was left knee degenerative joint disease and soft tissue foreign body, by X-ray. The examiner opined that he could find no evidence indicating treatment for shrapnel wound to the left knee. A negative separation examination in January 1970 was noted. The examiner stated that to determine whether the foreign body in the Veteran's left knee was shrapnel would require mere speculation because the record was silent. The examiner stated that the foreign body would not cause degenerative changes within the joint since the foreign body is not intra-articular. He opined that the degenerative joint disease was not related to service or the foreign body present on X-ray, and to determine whether the foreign body was due to military service would require speculation. The Veteran's representative urges that the examination report is inadequate because it does not address the issue of injury that caused the placement of the foreign body in the Veteran's knee, and whether this could have caused the current left knee disorders. The Board agrees under the circumstances. The Board too finds that the report of examination is inadequate for rating purposes inasmuch as the examiner does not comment on the relationship between current foreign body in the knee and service in light of the Veteran's assertions as to in-service trauma that have been accepted as credible by the Board. In years past, these types of noncommittal opinions amounted to "nonevidence," neither for nor against the claim. See Perman v. Brown, 5 Vet. App. 237, 241 (1993). See also, generally, Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). More recent case law, however, suggests that caution must be exercised when referring to medical reports and opinions as "nonevidence" and that, instead, the probative value or weight (competency and credibility) of the evidence should be assessed. Specifically, in Hogan v. Peake, 544 F.3d 1295 (2008) and Fagan v. Shinseki, 573 F.3d 1282 (2009), the Federal Circuit stated that classifying a medical report and opinion as nonevidence is "troubling." More recently, in Jones v. Shinseki, 23 Vet. App. 382 (2010), the Court held that where an examiner finds that he or she cannot provide an opinion without resorting to speculation, then "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion." In Jones, the Court noted it was unclear whether the examiners were unable to provide this requested definitive medical comment because they actually were unable to since the limits of medical knowledge had been exhausted or, instead, for example, needed further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data. The Court in Jones acknowledged there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability but also held that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data were fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. As noted above, the Veteran has testified in detail as to the circumstances of his injury to his left knee in service and the Board accepts his account as credible. The Board considers him a reliable historian. The Board considers this credible testimony to be further information to assist an examiner in making a determination as to the critical issue in this claim. In consideration of these factors, the claim should be returned to the previous examiner for an addendum addressing the issue of etiology of current left knee disability in view of the above discussion. Accordingly, the case is REMANDED for the following action: 1. The claims folder should be returned to the examiner who performed the July 2010 examination, or a suitable substitute. The claims folder must be made available to and reviewed by the examiner. An additional examination should only be conducted if deemed necessary by the examiner. Based on the examination results and the review of the claims folder, the examiner should provide an opinion with respect to any left knee disorder identified, to include any degenerative joint disease and soft tissue foreign body, as to whether it is at least as likely as not (50 percent or better probability) that the disorder is etiologically related to the Veteran's active service. For purposes of the opinion, the examiner should assume that the Veteran is a reliable historian, and that his assertions of record as to his aforementioned combat experience in service, his left knee injury and the in-service left knee pain and treatment are credible. The supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide the required opinions, he or she should explain why the required opinions cannot be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 2. Undertake any other development it determines to be warranted. 3. Then, readjudicate the issue on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the RO or AMC should furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond before returning the case to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the 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). _________________________________________________ MICHAEL A. PAPPAS 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).