Citation Nr: 1339124 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 10-30 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2004 to June 2009. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing at the RO before decision review officer (DRO), which was held in August 2010. A copy of the transcript is of record. Because the claim requires further development before being decided on appeal, the Board is remanding the claim to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Unfortunately, the Board has determined that the Veteran's claim must be remanded for further development, rather than decided immediately. See Shoffner v. Principi, 16 Vet. App. 208, 213 (2002). His service treatment records (STRs) contain multiple entries diagnosing both patellofemoral pain syndrome and chondromalacia. He had a VA Compensation and Pension examination in December 2009 in order to diagnose his present-day left knee condition and provide comment on its etiology, especially in terms of its alleged relationship with the diagnoses in service. The examiner's final impression was "[s]ubjective left knee pain...[n]ormal exam, [x-]ray, MRI and orthopedic evaluation." The folder contains what appears to be a September 2011 unsigned addendum to that examination. In it, the examiner concludes that "[t]he claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The commenter provided the following rationale: There is no evidence of a chronic functional [left] knee disability. Exams in service, C&P exams and orthopedic exams are negative for any significant knee abnormality. Most recent orthopedic evaluation in [January] 2010 indicated no pathology and [weight] loss was recommended. MRI negative. Opinion from [Dr. C] [September] 27th 2011 indicated 'MR is [negative]. Symptoms could be from BMI of 40.' BMI was a reference to "body mass index", so concerning the Veteran's excessive weight. That notwithstanding, neither the original December 2009 C&P examination nor the subsequent September 2011 addendum provides any comment on the left knee diagnoses the Veteran received during his service. The September 2011 opinion seems to surmise those prior diagnoses were never even made. The examination and addendum also ignore an October 2009 VA MRI that revealed "mild osteoarthritis with air in the medical compartments" of the left knee. The Veteran was discharged from the military in June 2009 and filed his claims of entitlement to service connection for this and other disabilities a short time later, in August 2009. There were only his subjective complaints of left knee pain during his contemporaneous December 2009 VA C&P examination, which is not tantamount to concluding he had an actual ratable left knee disability at the time of that evaluation in response to his claim, even more recently when preparing the supplemental September 2011 addendum, since the examiner was unable to detect any objective clinical findings referable to this knee. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that mere "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted"). Still, he need only show he has had this alleged disability at some point since the filing of his claim, even if it since has resolved, and the October 2009 MRI revealing "mild osteoarthritis with air in the medical compartments" of the left knee tends to meet this requirement. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). Moreover, arthritis is a chronic disease, per se, so if initially manifested to at least 10-percent disabling within the initial post-service year, as may have occurred here, it may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Even further, since a chronic disease according to § 3.309(a), the Veteran may establish the required linkage between this disease and his service alternatively by showing he has experienced continuity of symptomatology since his service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (discussing when it is appropriate to apply 38 C.F.R. § 3.303(b)). Thus, the Board finds that the Veteran's December 2009 VA C&P examination and later September 2011 addendum opinion were inadequate. Because also it is unclear whether the September 2011 addendum was in fact prepared by the original examiner, another examination and opinion are needed to fully consider and describe the state of the Veteran's disability and its etiology and potential relationship with his military service. See 38 C.F.R. § 4.1; Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Accordingly, the claim is REMANDED for the following additional development and consideration: 1. Schedule another VA compensation examination for additional medical comment concerning the Veteran's left knee, both in terms of the diagnoses referable to this knee since the filing of this claim in August 2009 and, assuming there is current disability (meaning just since the filing of this claim, even if now resolved), the etiology of it in terms of whether it is related or attributable to his military service - and particularly to the diagnoses he received during his service of patellofemoral pain syndrome and chondromalacia. a) It therefore is critical that the claims file and a copy of this remand be made available to the examiner, who must acknowledge receipt and review of these materials in any report generated as a result of this remand. The examination report must reflect review of the claims file, including all records referenced in this remand. b) The examiner must determine whether the Veteran has current left knee disability, but remaining mindful that this only requires he have had disability, such as a pertinent diagnosis, since the filing of this claim in August 2009, even if it since has resolved so no longer exist. Any and all necessary diagnostic testing and evaluation should be performed. If the examiner finds that the Veteran has not had left knee disability since the filing of this claim in August 2009, he or she must comment on the Veteran's past diagnoses, including during his service of patellofemoral pain syndrome and chondromalacia as well as of osteoarthritis during the initial post-service year, so presumptive period. Specifically, the examiner should if possible discuss why these diagnoses are no longer shown or warranted. c) If current left knee disability is found, the examiner must provide an opinion as to the likelihood (very likely, as likely as not, or unlikely) this disability was incurred in or aggravated by the Veteran's military service from June 2004 to June 2009 - including any potential relationship with the diagnoses during his service of patellofemoral pain syndrome and chondromalacia as well as of osteoarthritis during the initial post-service year, so presumptive period. d) The term "as likely as not" means at least 50 percent probability. It does not, however, mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. e) The examiner must discuss the underlying rationale of all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file supporting conclusions. f) If the examiner determines that he/she cannot provide an opinion on these determinative issues of current disability and causation without resorting to speculation, then the examiner should discuss why a sufficiently definitive response is not possible, such as by specifying whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a more conclusive opinion. 2. Then readjudicate this claim in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and his representative an SSOC and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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. 2013). _________________________________________________ Keith W. Allen 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).