Citation Nr: 1749986 Decision Date: 11/03/17 Archive Date: 11/13/17 DOCKET NO. 13-35 346 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for partial anterior cruciate ligament tear of the left knee. 2. Entitlement to service connection for a left hip disorder. 3. Entitlement to service connection for a left elbow disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1979 to April 1992. He also served in the Georgia Army National Guard and had a period of active duty from July 2008 to October 2009. This matter comes to the Board of Veteran's Appeals (Board) on appeal from a September 2010 rating decision issued by Department of Veterans' Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran has not been afforded a VA examination in connection with his claims for service connection for a left hip disorder and a left elbow disorder. His service treatment records do show that he was seen for left elbow tenderness and multiple contusions and strains following an accident in October 1988. He was also seen multiple times in 2009 for left elbow pain and was assessed as having medial epicondylitis in February 2009. Therefore, the Board finds that a VA examination and medical opinion are needed to determine the nature and etiology of any left hip and left elbow disorders that may be present. The Board also notes that the Veteran was afforded VA examinations in December 2009 and March 2013 in connection with his left knee claim. However, since those examinations, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the case of Correia v. McDonald, 28 Vet. App. 158 (2016), which impacts this case. In Correia, the Court concluded that 38 C.F.R. § 4.59 required VA examinations to include joint testing for pain on both active and passive range of motion, as well as with weight-bearing and nonweight-bearing. The December 2009 and March 2013 VA examination report do not include such findings. The Board does note that the Veteran was later provided additional VA knee examinations in April 2015 and September 2017 that the AOJ has not considered in connection with this claim. Nevertheless, the Board notes that those examination reports also do not contain the necessary findings. Therefore, the Board finds that an additional VA examination is needed to ascertain the current severity and manifestations of the Veteran's service-connected left knee disability. The Board further notes that additional evidence, including VA examination reports and treatment records, has been obtained since the case was last adjudicated by the AOJ in the statement of the case (SOC). There is an automatic waiver of initial AOJ review for any evidence submitted by the Veteran; however, as some of the additional evidence was obtained by the AOJ rather than the Veteran, the automatic waiver provision does not apply. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his left elbow, left hip, and left knee. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any left elbow disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and all lay statements of record. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current left elbow disorder that manifested in service or that is otherwise related to his military service, including any injury or symptomatology therein. In so doing, he or she should consider the service treatment records showing that the Veteran was seen for left elbow tenderness and multiple contusions and strains following an accident in October 1988. He was also seen multiple times in 2009 for left elbow pain and was assessed as having medial epicondylitis in February 2009. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The Veteran should be afforded a VA examination to determine the nature and etiology of any left hip disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and all lay statements of record. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current left hip disorder that manifested in service or that is otherwise related to his military service, including any injury or symptomatology therein. In so doing, he or she should consider the service treatment records showing that the Veteran was seen for multiple contusions and strains following an accident in October 1988. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. The Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected left knee disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the left knee disability under the rating criteria. In particular, the examiner should provide the range of motion in degrees of the right and left knees. In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The examiner should also comment on whether there is any ankylosis; dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint; or, the symptomatic removal of semilunar cartilage. He or she should also address whether the Veteran has recurrent subluxation or lateral instability, and if so, comment as to whether such symptomatology is slight, moderate, or severe. The examiner should further state whether there is any malunion or nonunion of the tibia and fibula. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. Further, the VA examiner should comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and nonweight-bearing can be estimated for the other VA examinations conducted during the appeal period. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. The AOJ should review the examination reports to ensure that they are in compliance with this remand. If a report is deficient in any manner, the AOJ should implement corrective procedures. 6. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are 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 or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ J.W. ZISSIMOS 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) (2016).