Citation Nr: 1338536 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 07-02 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a right knee disorder, including as secondary to the Veteran's service-connected left knee disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran had active service from February 1990 to August 1994. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that denied the benefit sought on appeal. In November 2009, September 2011, and September 2012, the Board remanded this matter for further development which has been completed, and the case has been returned to the Board for appellate consideration. In September 2009, the Veteran testified at a hearing before a Veterans Law Judge who is no longer employed by the Board. A transcript of that hearing is of record and has been associated with the claims file. Subsequently and pursuant to the Veteran's request, he testified at a hearing before the undersigned in December 2012, and a copy of the transcript has been associated with the claims folder. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has reviewed the documents in both the paper claims file and the electronic 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 is required. REMAND Unfortunately, another remand is required in this case. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. The Veteran essentially contends that he has a current right knee disorder secondary to his service-connected left knee disorder. Throughout the course of the appeal, he has been afforded multiple VA examinations to determine the etiology of his current right knee disorder, to specifically include addressing the relationship if any between his right knee disorder and service-connected left knee disorder. In remanding the issue for further examination in September 2011, the Board directed the VA examiner to take into account a March 2011 VA clinician's opinion that the progression of the left knee arthritis and dysfunction would contribute to deterioration of the right knee due to loading pattern, etc. In a November 2011 VA examination report, the examiner opined that the right knee disorder was less likely than not proximately due to or the result of the service-connected left knee disorder. The examiner indicated that review of orthopedic literature showed no credible, peer reviewed studies to support the conclusion that degenerative changes of one joint may induce degenerative changes in another joint either of the affected or contralateral extremity or spine even with leg length discrepancy. He further noted that it was most likely that the Veteran's current right knee disorder was related to chronic degenerative changes associated with aging. As to aggravation, the examiner found that it was not at least as likely as not that the Veteran's right knee disorder was aggravated beyond its natural progression by the service-connected left knee disorder. The examiner cited to the same rationale he provided for finding that the right knee disorder was not secondary to the left knee disorder. The Board finds that the November 2011 VA examination report is inadequate. Although the VA examiner indicated that he reviewed the claims folder in conjunction with rendering the opinion, he did not cite to nor discuss the March 2011 VA clinician's opinion that progression of the left knee disorder would contribute to deterioration of the right knee due to loading pattern, etc. In the September 2011 remand, the Board specifically instructed the VA examiner to address this opinion. Therefore, on remand, the Veteran must be provided another examination to determine the etiology of his current left knee disorder, specifically addressing the March 2011 opinion. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that the Board is obligated by law to ensure that the RO complies with its directives, and where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Additionally, the Veteran testified at his December 2012 hearing that he continued to receive treatment for his bilateral knee disorders. On remand, all outstanding VA and private treatment records should be obtained. See 38 C.F.R. § 3.159(c) (1), (2) (2013); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Obtain all outstanding VAMC treatment records. All efforts to obtain the additional evidence must be documented in the paper and/or electronic claims files. If the search for such records has negative results, documentation to that effect should be included in the claims files. 2. With any necessary assistance from the Veteran, obtain any outstanding private treatment records. All efforts to obtain the additional evidence must be documented in the paper and/or electronic claims files. If VA is unable to secure these records, it must notify the Veteran and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2013). 3. Schedule the Veteran for an appropriate examination to determine the precise nature and etiology of his right knee disorder. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The claims file must be made available to and be reviewed by the examiner prior to the examination and the examination report should so indicate. Following a thorough evaluation the examiner is asked to state a) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's right knee disorder began in or is related to active service; b) whether it is at least as likely as not that any right knee disorder was caused or has been aggravated by the Veteran's service-connected left knee disorder; and c) if the examiner determines that the Veteran's right knee disorder is aggravated (i.e., permanently worsened) by the service-connected left knee disorder, the examiner should identify the percentage of disability which is attributable to the aggravation. See 38 C.F.R. § 3.310 (as in effect prior to October 10, 2006); Allen v. Brown, 7 Vet. App. 439 (1995). The examiner must comment on the March 2011 opinion and provide any reconciliation, if needed. A complete rationale for each opinion offered must be included, and an explanation of the principles involved would be of considerable assistance. 4. Ensure that the examination report complies with this remand and that the questions are presented in the RO/AMC's examination request. If the report is insufficient, it should be returned to the examiner for necessary corrective action, as appropriate. 5. When the requested development has been completed the case should again be reviewed by the RO/AMC, to include consideration of any additional evidence submitted. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ A. C. MACKENZIE 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) (2012).