Citation Nr: 1602535 Decision Date: 01/21/16 Archive Date: 01/28/16 DOCKET NO. 11-23 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a right knee disability, to include as secondary to service-connected pes planus. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from September 1983 to July 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Huntington, West Virginia. Jurisdiction of this matter is currently with the RO located in Nashville, Tennessee. In April 2014 the Board remanded the issue to the Agency of Original Jurisdiction (AOJ) for additional development. The appeal again is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for a right knee disability. In his claim received in November 2009, he reported that his right knee disability began on August 1, 2005, and that he was treated at Gateway Hospital. In separate correspondence received in December 2009, he asserted that repeated impact injuries from running and being on jump status while carrying up to 100 pounds of equipment during active duty caused his right knee disability, adding that he was seen for a stress fracture in his right leg in service. Following the denial of his claim, he then argued that his current right knee disability was secondary to flat feet that caused "pronation and leading to anterior compartment syndrome and eventual right knee degradation and bilateral foot condition." During a January 2011 VA examination, the Veteran reported an insidious onset of right knee pain around 2000. He has not identified similar problems or disability with his left knee. The April 2014 Board decision granted service connection for bilateral pes planus and a May 2014 rating decision effectuated the Board's decision, assigning a 10 percent disability rating for each foot, effective November 12, 2009. In compliance with the prior remand, the Veteran was afforded an additional VA examination in April 2015 and the examiner provided opinions with supporting rationales regarding service connection on a direct basis, as proximate to service-connected pes planus, and as aggravated by pes planus. The examiner also discussed medical opinions received from the Veteran's private physician who performed right knee surgery in November 2005, K. Starkweather, M.D., and from the Veteran's private podiatrist. Thereafter, the Veteran's representative submitted a fourth medical opinion report from Dr. Starkweather on the Veteran's behalf. Unfortunately, a waiver of AOJ consideration was not included with the new evidence, and the AOJ has not issued a Supplemental Statement of the Case since completing the actions requested in the April 2014 Remand. Moreover, the Board has reviewed every page of the electronic claims file and observes that while the Veteran reported that his current right knee disability began on August 1, 2005, and subsequently around 2000, the earliest record pertinent to a right knee problem is the report of a September 12, 2005, right knee magnetic resonance imaging (MRI) study ordered by Dr. Starkweather to evaluate the Veteran's complaints of "right knee pain, apparently predominantly medially/anteriorly." However, earlier treatment records from Gateway Health System dating back to October 2002 are silent for complaints, diagnosis, or treatment for right knee problems and do not include any clinical treatment record reflecting Dr. Starkweather's plan to order a right knee MRI. In fact, during a March 2005 consultation to evaluate an umbilical hernia, reported objective findings of the musculoskeletal system on examination included normal gait and grossly normal tone and muscle strength. Therefore, because the private treatment records appear to be incomplete as to clinical records pertinent to the right knee prior to the September 2005 MRI report, the Veteran should be given another opportunity to provide those records to VA as they are pertinent to his claim. The AOJ should also obtain ongoing treatment records from the VA Medical Center (VAMC) in Nashville, Tennessee dating since March 2015. After any additional treatment records pertinent to the right knee are obtained, the entire claims file should be provided to the April 2015 VA examiner to obtain supplemental medical opinions regarding the etiology of the Veteran's right knee disability. Accordingly, the case is REMANDED for the following action: 1. With any necessary assistance from the Veteran, the AMC shall obtain the following records: a) All clinical treatment records and imaging reports pertinent to the right knee and/or bilateral feet from Gateway Health System since establishing medical care until September 2005, including any record authored by V. Starkweather, M.D., documenting his plan to order a right knee MRI study, and a digital copy of the September 12, 2005 right knee MRI image(s). b) Ongoing treatment records from the Nashville VA Medical Center dating since March 2015. 2. After the outstanding medical records are obtained and associated with the claims file, the AMC shall forward the Veteran's entire electronic claims file, including a complete copy of this Remand, to the April 2015 VA examiner to obtain supplemental medical opinions regarding the etiology of the Veteran's right knee disability. Following a review of claims file, including the additional medical opinion from K. Starkweather, M.D., dated in May 2015, the September 2005 right knee MRI report and/or image(s), and November 2005 operative report, the examiner is requested to respond to the following: a) The Veteran's service treatment records provide assessments of "shin splints" and "anterior compartment syndrome" in response to his complaints of "shin splints" and medial tibial pain. Please define each to assist the Board. b) Identify the Veteran's right knee disability as it existed in September 2005 as shown by clinical and imaging records, or earlier if such records are received, including the degree of arthritis in the compartments of the right knee at that time. c) Is it at least as likely as not that the Veteran's right knee disability as it existed in September 2005 or earlier had its onset in service, that right knee arthritis manifested within one year of separation from service, or that the right knee disability as it existed in September 2005 or earlier is otherwise the result of a disease or injury in service to include shin splints and/or anterior compartment syndrome? d) Is it at least as likely as not that the Veteran's right knee disability as it existed in September 2005 or earlier was caused (in whole or in part) by a service-connected disability, to specifically include bilateral pes planus? e) Is it at least as likely as not that the Veteran's right knee disability as it existed in September 2005 or earlier was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by a service-connected disability, to specifically include bilateral pes planus? If the current right knee disability is aggravated by a service-connected disability, to include pes planus, the April 2015 examiner shall indicate, to the extent possible, the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and by the Veteran's statements of record as to the nature, severity, and frequency of his observable symptoms over time. The reviewing examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he must provide a reason for doing so. If the reviewing examiner is unable to provide an opinion without resort to speculation, he should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 3. The AOJ will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 4. The AOJ will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative shall be provided with an SSOC. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). _________________________________________________ DEMETRIOS G. ORFANOUDIS Acting 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) (2015).