Citation Nr: 1405702	
Decision Date: 02/07/14    Archive Date: 02/18/14

DOCKET NO.  09-30 990	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1. Whether new and material evidence has been received in order to reopen a service connection claim for a left knee disability, to include arthritis (hereinafter "left knee disability").  

2. Whether new and material evidence has been received in order to reopen a service connection claim for a bilateral hip disability, to include replacements (hereinafter "bilateral hip disability").  

3. Whether new and material evidence has been received in order to reopen a service connection claim for hypertension (hereinafter "HTN").  

4. Whether new and material evidence has been received in order to reopen a service connection claim for hepatitis C (hereinafter "HCV").  

5. Whether clear and unmistakable error (hereinafter "CUE") is present in an April 1998 rating decision, which confirmed and continued a 10 percent disability evaluation for service-connected anterior cruciate ligament insufficiency with limitation of motion and degenerative arthritis (hereinafter "right knee disability").  

6. Entitlement to service connection for a left knee disability, to include as secondary to the service-connected right knee disability.  

7. Entitlement to service connection for a bilateral hip disability, to include as secondary to the service-connected right knee disability.  

8. Entitlement to service connection for arthritis of multiple joints, also claimed as systemic disease (hereinafter "systemic arthritis"), to include as secondary to the service-connected right knee disability.   

9. Entitlement to service connection for arthritis of the hands.  

10. Entitlement to service connection for HTN.  

11. Entitlement to service connection for heart disease (hereinafter "heart disease"), to include as secondary to HTN.  

12. Entitlement to service connection for HCV.  

13. Entitlement to an evaluation in excess of 10 percent for the service-connected right knee disability.  


REPRESENTATION

Veteran represented by:	Lewis C. Fichera, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Nigam, Counsel


INTRODUCTION

The Veteran served on active duty from January 1983 to April 1986.  

This matter initially came before the Board of Veterans' Appeals (hereinafter "Board") on appeal from a July 2007 rating decision and an April 2009 rating decision issued in May 2009 by the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in Pittsburgh, Pennsylvania.  Jurisdiction of these claims was eventually transferred to the Philadelphia, Pennsylvania RO.  

In December 2011 the Board remanded the matter to the RO to schedule a Board hearing.  In July 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge (hereinafter "VLJ").  A transcript of that proceeding is of record.  The hearing was adequate as the undersigned VLJ and attorney for the Veteran explained the issues and identified possible sources of evidence that may have been overlooked.  38 C.F.R. § 3.103(c)(2) (2013); Bryant v. Shinseki, 23 Vet. App. 488 (2010).  This action constitutes substantial compliance with the December 2011 remand directive and no further development is required.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999).  During the hearing, the Veteran submitted additional evidence along with a waiver of RO review of that evidence; hence, the Board may proceed with the adjudication of the claims on the merits.  See 38 C.F.R. § 20.1304 (2013).  

In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed all evidence contained in the Veteran's virtual VA claims file and Veterans Benefits Management System claims file to ensure a complete assessment of the evidence.  No additional documents pertinent to the present appeal were revealed.   

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).  

The issues of service connection for a left knee disability, a bilateral hip disability, systemic arthritis, arthritis of the hands, HTN, heart disease, and HCV; and of an increased rating for the service-connected right knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO.  


FINDINGS OF FACT

1. The Veteran's request to reopen his claim of service connection for HTN was denied by an unappealed RO rating decision in June 2005, on the basis there was no diagnosis of HTN during the Veteran's military service, or a nexus between this disability and the Veteran's military service; this decision is final.  

2. Evidence added to the record since the June 2005 rating decision, including written statements from the Veteran, his hearing testimony, VA and private treatment records, and a VA examination report, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim for HTN, and raises a reasonable possibility of substantiating the claim.  

3. The Veteran's request to reopen his claim of service connection for HCV was denied by an unappealed RO rating decision in February 2006, on the basis there was no evidence of a current HCV diagnosis, or a nexus between this disability and the Veteran's military service.  The reopened claims of service connection for a left knee disability and a bilateral hip disability were also denied by the unappealed February 2006 RO rating decision, on the basis there was no evidence of a nexus between these disabilities and the Veteran's service-connected right knee disability.  This decision is final.  
 
4. Evidence added to the record since the February 2006 rating decision, including written statements from the Veteran, his hearing testimony, and VA and private treatment records, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claims for HCV, a left knee disability and a bilateral hip disability, and raises a reasonable possibility of substantiating the claims.  

5. The RO's April 1998 rating decision, which denied entitlement to a disability evaluation in excess of 10 percent for the service-connected right knee disability, was not factually flawed or undebatably erroneous; and involved no obvious or undebatable legal error, as alleged, involving the evaluation of the Veteran's service-connected right knee disability under the rating criteria.  


CONCLUSIONS OF LAW

1. New and material evidence has been received since the June 2005 rating decision to reopen the claim of service connection for HTN.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013).  

2. New and material evidence has been received since the February 2006 rating decision to reopen the claims of service connection for HCV, a left knee disability and a bilateral hip disability.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013).  

3. The RO's April 1998 rating decision was not clearly and unmistakably erroneous in continuing a 10 percent evaluation for a right knee disability.  38 U.S.C.A. §§ 5112, 5109A(b), 7104 (West 2002 & Supp. 2013); 38 C.F.R. § 3.105(a) (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Under the Veterans Claims Assistance Act of 2000 (hereinafter "VCAA"), VA generally has a duty to notify and assist claimants in substantiating a claim for benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  However, a motion for CUE is not a claim or application for VA benefits and thus VCAA requirements are not applicable to CUE motions.  See Livesay v. Principi, 15 Vet. App. 165 (2001).  

In a May 1986 rating decision, issued in June 1986, the RO granted service connection for anterior cruciate ligament insufficiency with degenerative joint disease of the right knee, and assigned a 10 percent evaluation from April 17, 1986.  In September 1997, the Veteran requested an increased rating for the right knee disability.  In December 1997, he underwent VA examination of the right knee, and in an April 1998 rating decision, the RO confirmed and continued the 10 percent rating assigned based solely on the December 1997 VA examination report.  This decision was not appealed, and is final.  38 U.S.C.A. § 5109A; 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104(a) (2013).  RO decisions that are final and binding are accepted as correct in the absence of CUE.  38 C.F.R. § 3.105(a) (2013).  

In determining whether a prior determination involves CUE, the United States Court of Appeals for Veterans Claims (hereinafter "Court") has established a three-prong test.  The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be "undebatable" and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question.  Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).  

CUE is a very specific and rare kind of error.  It is the kind of error in fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would manifestly have been different but for the error.  Generally, the correct facts, as they were known at the time, were not before the RO, or the statutory and regulatory provisions extant at the time were incorrectly applied.  Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable.  Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell, 3 Vet. App. at 313-14.  

The Court had defined CUE as an administrative failure to apply the correct statutory and regulatory provisions to the current and relevant facts.  See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992).  However, the misinterpretation of facts does not constitute CUE.  See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991).  The Court has also held that the failure to fulfill the duty to assist does not constitute CUE.  See Crippen v. Brown, 9 Vet. App. 412, 424 (1996); Caffrey v. Brown, 6 Vet. App. 377 (1994).  

In a notice of disagreement (hereinafter "NOD"), received in June 2006, the Veteran, through his representative, brought an allegation of CUE regarding April 1998 RO rating decision.  Specifically, the representative argued that the April 1998 rating decision failed to consider the Veteran's arthritis and pain under DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  

In the April 1998 rating decision, the RO relied upon the findings of a December 1997 VA examination report, which indicated that the Veteran had complaints of knee pain, but that there was no evidence of swelling or tenderness.  The examination showed that there was flexion to 120 degrees with slight pain, no instability was noted, and McMurray's test was negative.  The RO continued the 10 percent disability rating based on a finding of slight recurrent subluxation or lateral instability of the knee.  The RO did not find that there was evidence of moderate subluxation or lateral instability of the knee, which would warrant an evaluation of 20 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1996).  

Following review of the claims file, the Board finds that while the RO rated the Veteran's right knee disability under the wrong diagnostic code, this would not have manifestly changed the outcome of the case at the time it was made in April 1998.  

At the time of the April 1998 rating decision, in his September 1997 claim for an increased rating, the Veteran argued that starting in 1991 he was prescribed 800 milligrams of Motrin, to be taken 3 times a day for pain relief; and that in 1997 he began to experience degenerative arthritis spreading to both hips and the left knee.  He did not assert that he experienced any recurrent subluxation or lateral instability, or limitation of motion in the right knee.  

As noted, the December 1997 VA examination, which is the only medical evidence of record from the appeal period, was relied upon by the RO to determine the degree of severity of the service-connected right knee disability in the April 1998 rating decision.  The examiner noted that the Veteran complained of being forced to lead a more sedentary life due to his right knee disability, which led to weight gain.  He also described symptoms of constant pain, weakness, stiffness, lack of endurance, and locking in the knee.  However, he did not use a cane and was able to work as a telecommunications consultant.  On physical examination the examiner observed no swelling, tenderness, impairment, subluxation or lateral instability, nonunion with loose motion, or malunion of the right knee.  Also, range of motion testing revealed flexion to 120 degrees with slight pain, and McMurray's test was negative.  After an X-ray study was performed on the knee, the Veteran was diagnosed with status-post arthroscopic surgery for the right knee for removal of meniscus, with no evidence of recent fracture or dislocation of both knees, and with degenerative joint disease of the knees.  The Veteran was also diagnosed with old un-united chip fracture of anterior margin of proximal ends of the tibia, small spurs in the patella, and synovial osteochondroma in the right knee.  

The Board notes that at the time of the April 1998 rating decision, the right knee disability was rated pursuant to 38 C.F.R. § 4.71a, under the General Rating Formula for Diseases and Injuries of the Knee and Leg (Diagnostic Codes 5256-5263).  At the time of the rating decision, in order to be rated 10 percent under the relevant diagnostic codes, the Veteran's right knee would have had to have at least been manifested by slight recurrent subluxation or lateral instability; flexion of the leg limited to 45 degrees; extension of the leg limited to 10 degrees; malunion of the tibia and fibula with slight knee or ankle disability; or genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated).  However, the clinical and lay evidence of record at the time of the April 1998 rating decision does not indicate that the Veteran's right knee disability was manifested by any of these conditions.  Instead, the Veteran's right knee disability would more appropriately have been rated under Diagnostic Code 5003, as degenerative arthritis.  The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology.  

Diagnostic Code 5003 in turn provides that degenerative arthritis (that is established by X-ray findings) will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups.  Note (1) provides that the 20 pct and 10 pct ratings based on X-ray findings will not be combined with ratings based on limitation of motion.  Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive.  

When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved.  38 C.F.R. § 4.71a.  

VA's Office of General Counsel provided has held that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257 because the arthritis would be considered an additional disability warranting a separate evaluation even if the limitation of motion was not compensable.  See VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997).  However, as noted, in this case the Veteran does not meet the rating criteria for two separate ratings for his right knee disability.  

Also, the Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability.  DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45.  Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  38 C.F.R. § 4.40.  The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement.  38 C.F.R. § 4.45.  The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C .F.R. § 4.59.  

Applying the law applicable in April 1998, including the holding in DeLuca, the Board does not ascertain a definitive legal error in the determination to confirm and continue a 10 percent evaluation assigned for the Veteran's right knee disability.  In this regard, while the Veteran's right knee had slight pain on motion, as indicated above, the examiner observed no swelling, tenderness, impairment, subluxation or lateral instability, nonunion with loose motion, or malunion of the right knee, and the Veteran had range of motion to 120 degrees flexion and 10 degrees extension in the right knee.  Moreover, the Veteran did not assert that he experienced more than pain and degenerative arthritis in the right knee.  The disability from that manifestation is adequately compensated by the 10 percent rating assigned.  While review of the April 1998 RO rating decision does not clearly indicate which diagnostic code was used to evaluate the Veteran's right knee disability, it appears that he was rated under the wrong diagnostic code.  However, the findings of painful or limited motion of a major joint, under the diagnostic code for rating degenerative arthritis, 38 C.F.R. § 4.71a, Diagnostic Code 500, specifically contemplate limitation of motion based on pain.  Thus, even after applying DeLuca, the Veteran would not be entitled to a rating in excess of 10 percent based on the December 1997 findings and the Veteran's lay assertions.  

For these reasons, the April 1998 RO rating decision is found to withstand this CUE inquiry.  


ORDER

New and material evidence has been received to reopen claims for entitlement to service connection for a left knee disability, a bilateral hip disability, HTN and HCV, and, to that extent only, the claims to reopen are granted.  

There was not CUE in the April 1998 RO rating decision, which confirmed and continued the assigned 10 percent disability evaluation for a right knee disability.  


REMAND

The Veteran claims his left knee disability, bilateral hip disability, systemic arthritis, and arthritis of the hands are caused or aggravated by his service-connected right knee disability.  No medical opinion exists that addresses if the service-connected right knee disability aggravated any or all of these claimed disabilities.  Also, service treatment records reflect findings of symptoms related to HTN in service, and VA treatment records reveal current treatment for HTN, heart disease and HCV; however, no adequate VA examination and medical opinion has been obtained to determine the nature and etiology of these claimed disabilities.  The medical evidence is not sufficiently developed to adjudicate the claims for service connection for a left knee disability, a bilateral hip disability, systemic arthritis, arthritis of the hands, HTN, heart disease, and HCV.  VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2013); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

Also, the Veteran last underwent VA examination to evaluate the severity of his service-connected right knee disability, almost a decade ago, in April 2004.  Contemporaneous VA examination is necessary to determine the current severity of his right knee disability.  As such, he should be afforded a current VA examination.  See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous").  

Lastly, the record clearly indicates that the Veteran is in receipt of Social Security Administration (hereinafter "SSA") disability benefits.  No SSA records appear within the claims file and no attempt has been made to obtain these records. The RO should attempt to obtain the Veteran's SSA records.  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  Expedited handling is requested.)

1. Obtain the Veteran's complete SSA disability file, including any pertinent claim for benefits, the SSA decision, any List of Exhibits associated with the decision, and copies of all of the medical records upon which any decision concerning the Veteran's entitlement to benefits was based.  If any requested records are not available, that fact must clearly be documented in the claims file and proper notification under 38 C.F.R. § 3.159(e) should be provided to the Veteran.  

2. After the above development has been accomplished to the extent possible, schedule the Veteran for a VA orthopedic examination to determine the nature and etiology of any current systemic arthritis, arthritis of the hands, left knee disability and bilateral hip disability.  In conjunction with the examination, the examiner must review the entire claims file, including a complete copy of this remand, Virtual VA and any lay assertions presented.  All indicated tests and studies are to be performed.  

After reviewing the claims files, the examiner should provide an opinion as to the following questions: 

(a) Whether it is at least as likely as not (50 percent probability or more) that any diagnosed systemic arthritis, arthritis of the hands, left knee or bilateral hip disability had its onset during service, became manifest within one-year of his discharge from service, or is otherwise causally related to any event or circumstance of the Veteran's active service?  In doing so, the June 1988, December 1997, November 1998, October 2001 and April 2004 VA joints examination reports, along with the July 2001 and August 2005 private medical opinions from "Dr. Hokala" and "Dr. Soloway" should be discussed.   The examiner should note that in November 1985 the Veteran reported he had a history of arthritis, rheumatism, or bursitis, and that he had a trick or locked knee when provide his medical history.  

(b) Without regard to the answer to question (a), whether it is at least as likely as not (50 percent probability or more) that any current systemic arthritis, arthritis of the hands, and left knee and bilateral hip disabilities, are either (1) proximately due to, the result of, or caused by a service-connected disability, to particularly include the right knee disability; or, in the alternative, (2) have been aggravated (made permanently worse beyond the natural progression of the disease) by any service-connected disability, to particularly include the right knee disability.  It is imperative that the examiner provide a clear and separate response for each claimed disability, addressing these two distinct questions involving causation and aggravation.  

The examiner should be notified that the term "at least as likely as not" does not mean "within the realm of medical possibility."  Rather, it means 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 that conclusion as it is to find against it.  

A report of the examination should be prepared and associated with the Veteran's VA claims file.  A complete rationale must be provided for all opinions rendered.  If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.  

3. The RO must schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his current HTN and any heart disease.  In conjunction with the examination, the examiner must review the entire claims file, including a complete copy of this remand, Virtual VA and any lay assertions presented.  All indicated tests and studies are to be performed.  

The examiner should review the February 2009 VA examination report and April 2009 VA medical opinion, and clarify as to whether or not the Veteran had a diagnosis of HTN since 1983, and explain any discrepancies.  The examiner is then requested to provide an opinion addressing whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any current HTN and/or heart disease is related to the Veteran's service.  The examiner should address records from "Arlington Hospital," dated in October 1987, which indicate elevated blood pressure readings taken throughout a single day, as well as a March 1992 VA treatment record, indicating a diagnosis of hypertension in 1983.  

The examiner should be notified that the term "at least as likely as not" does not mean "within the realm of medical possibility."  Rather, it means 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 that conclusion as it is to find against it.  

A complete rationale must be provided for all opinions rendered.  If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.  

4. The RO must schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any current HCV infection, or manifestation thereof.  In conjunction with the examination, the examiner must review the entire claims file, including a complete copy of this remand, Virtual VA and any lay assertions presented (in particular, the Veteran's spouse's statement received in September 2007).  All indicated tests and studies are to be performed, and comprehensive social, educational, and occupational histories are to be obtained.  

The examiner is then requested to provide an opinion addressing whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any current HCV is related to an event of the Veteran's service, to include getting splashed in the eye with a "serum"/ "contaminated blood" purported to contain a strain of HCV (see September 2004 "Risk Factors for Hepatitis Questionnaire").  The examiner should discuss the Veteran's reported medical histories taken in July 1985 and in November 1985 that he had a history of jaundice or hepatitis while in service.  The examiner should also explain the relationship between a finding of non-reactive hepatitis A, non-reactive hepatitis B, and HCV, as shown in VA and private treatment records in 2001 and 2005, and should discuss if non-reactive results exclude the possibility of HCV infection.  The examiner should also address a June 2005 private abdominal ultrasound, which revealed findings of a mildly enlarged liver, and a March 2008 private medical opinion by "Dr. Bash," which indicates the Veteran has HCV related to service but does not explain why.  

The examiner should be notified that the term "at least as likely as not" does not mean "within the realm of medical possibility."  Rather, it means 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 that conclusion as it is to find against it.  

A report of the examination should be prepared and associated with the Veteran's VA claims file.  A complete rationale must be provided for all opinions rendered.  If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.  

5. The RO must arrange for VA examination with an appropriate clinician to determine the nature and severity of the right knee disability. 

A copy of this remand and all relevant medical records should be made available to the examiner, to include any pertinent records in the Virtual VA Folder.  The examiner is asked to confirm whether paper and/or electronic records were available for review.  

It is requested that the VA examiner provide a thorough history of the Veteran's right knee symptomatology, and indicate all present symptoms and manifestations attributable to the Veteran's service-connected anterior cruciate ligament insufficiency with limitation of motion and degenerative arthritis. 

In particular, it is imperative that the VA examiner provide range of motion test results, comment on the degree of impairment of the right knee, including any recurrent subluxation or lateral instability, which should be characterized in terms ranging from "slight" to "moderate" to "severe," as per the applicable rating criteria.  The examiner should indicate if any favorable or unfavorable ankylosis is present in the knee, and at what point in flexion or extension that ankylosis occurs.  The examiner should also describe the impact, if any, of the Veteran's condition upon his capacity for gainful employment.  

In making all determinations, the examiner is asked to carefully consider the Veteran's own assertions and any lay assertions of record.  The examiner is advised that the Veteran is competent to report his symptoms, and that his reports must be considered in formulating the requested opinion.  If his reports are discounted, the examiner should provide a reason for doing so.  

A rationale for any opinion offered is requested. If the examiner is unable to render the requested opinion without resort to pure speculation, he or she must so state; however, a complete rationale for such a finding must be provided.  Examples of types of reasons are the lack of appropriate expertise on the part of the clinician, the Veteran being an unreliable historian, the matter being beyond the current state of learning and knowledge in the relevant field of medicine, or a lack of an adequate factual basis in the record upon which to form an opinion.  

6. Thereafter, and after undertaking any additional development deemed necessary, the RO must readjudicate the issues on appeal.  If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his attorney should be provided with a supplemental statement of the case and be afforded reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.  

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).  

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).  




______________________________________________
D. C. Spickler
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs