Citation Nr: 1510472 Decision Date: 03/12/15 Archive Date: 03/24/15 DOCKET NO. 09-40 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a right knee disability, to include as secondary to service-connected residuals of simple fracture of the right tibia and fibula. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Budd, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1961 to January 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Jurisdiction rests with the RO in St. Paul, Minnesota, from which the appeal was certified. In October 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. This matter was previously remanded by the Board in August 2013 and May 2014. In a January 2014 rating decision, the RO granted service connection for left knee degenerative joint disease and for residuals of left total knee replacement. Therefore, the Board finds this issue is no longer on appeal. The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A December 2013 VA examination was conducted in accordance with the August 2013 remand. The examiner noted that the Veteran reported developing a "trick" knee with intermittent locking, swelling, and pain. The Veteran stated that he sought treatment from various providers through the years, but most records have been lost or destroyed. The examiner noted no injuries since service, and also noted that the Veteran spent the majority of the time talking about his left knee. The examiner found that Veteran's right knee disability was not caused by service because the Veteran's service treatment records (STRs) do not indicate a right knee injury during service, and the Veteran "made little mention of his right knee condition during interview with this examiner." The Veteran did not mention a skiing accident or that a fellow soldier sat on his right knee in service during the examination, and "seemed to suggest his left knee was the bothersome joint during the initial years after service." The examiner thus concluded that "insufficient evidence exists to suggest a right knee injury during service led to his current right knee condition." The examiner went on to find that the Veteran's right knee disability was not proximately due to service-connected residuals of a simple fracture of the right tibia and fibula because the Veteran had a normal examination upon separation from service, and there are no records to suggest that the Veteran had a significant alteration in gait within a year after separation from service. Therefore, the examiner concluded, a nexus to service-connected right tibia and fibula fracture cannot be established. In accordance with the Board's May 2014 remand, a supplemental opinion was obtained in August 2014 to consider whether the Veteran's right knee disability is aggravated by his service-connected residuals of simple fracture of the right tibia and fibula. The clinician gave a negative opinion supported by the rationale that the Veteran has had no documented right ankle/knee care proximal to service discharge, the effects of interceding occupational factors and other injuries cannot be excluded, there are no clinical records to support this contention to the exclusion of other confounding factors, and that the Veteran's mild osteoarthritis and/or right knee pain can be accounted for by age alone. Unfortunately, the opinions are not adequate. The December 2013 negative secondary service connection opinion was supported by rationale stating that there are no records to suggest that the Veteran had a significant alteration in gait within a year after separation from service. However, the examiner did not explain why the absence of an alteration in gait within a year of service as opposed to later, such as the September 2007 indication of an abnormal gait and the October 2007 notation of swerving mild gait, supports this negative opinion. Nieves-Rodriguez v. Peak, 22 Vet. App. 295, 304 (2008) (A medical opinion that includes only data and conclusions is accorded no weight). Upon remand, this rationale should be expanded. Additionally, the August 2014 opinion appears to be based at least in part upon the absence of records after service rather than the Veteran's competent lay testimony, which has been acknowledged in the December 2013 examination. Of particular interest is the Veteran's October 2011 hearing testimony that his knees and ankle bothered him shortly after service, resulting in his being permitted to use a riding lawnmower, and his report in a June 2008 examination that his right knee began bothering him around 1965. The Veteran is competent to testify as to symptoms shortly after service. Layno v. Brown, 6 Vet. App. 465 (1994). The August 2014 opinion also states that the effects of interceding occupational factors and other injuries cannot be excluded, in spite of a finding in the December examination of no injuries since service. Although the June 2008 examination did note falls as possible interceding incidents, it also indicated no specific injury of the right knee. On the contrary, when the Veteran discussed the result of his falls in the June 2008 examination, his reports centered on the left knee. Upon remand, the aggravation opinion should be reconciled with the relevant facts or findings from the previous examinations and the Veteran's lay testimony. Although the Board sincerely regrets the additional delay, a supplemental opinion should be obtained upon remand that fully considers the Veteran's lay testimony, and provides an appropriate rationale. Accordingly, the case is REMANDED for the following action: 1. Forward the claims file to the December 2013 VA examiner, or an appropriate substitute if unavailable, for an addendum opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's right knee disability was caused or chronically aggravated by the Veteran's service-connected residuals of simple fracture of the right tibia and fibula. The clinician is asked to reconcile his or her findings with the Veteran's October 2011 hearing testimony that his knees and ankle bothered him soon after discharge, his report in the June 2008 examination that his right knee began to bother him around 1965, the December 2013 examiner's note of no injuries since service, the June 2008 examination report indicating falls but no specific injury to the right knee, and the treatment records indicating abnormal gait in September and October 2007. A complete rationale for any opinion expressed is required. The opinion may not consist solely of data and conclusions. Aggravation is defined as permanent worsening beyond the natural progression of the disease or disability. If the clinician determines that the requested opinion cannot be rendered without additional clinical examination, then a new examination should be scheduled. 2. After completing the above development, readjudicate the Veteran's claim. If the benefit sought remains denied, furnish the Veteran and his representative with a Supplemental Statement of the Case, and give them the opportunity to respond. Thereafter, return the appeal to the Board for appellate review. The appellant 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 2014). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).