Citation Nr: 1750113	
Decision Date: 11/03/17    Archive Date: 11/13/17

DOCKET NO. 12-01 553	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to a disability rating in excess of 10 percent for post-operative chondromalacia patella of the left knee.

2. Entitlement to a disability rating in excess of 30 percent for post-operative chondromalacia patella of the right knee.

3. Entitlement to service connection for right foot neuropathy, to include as secondary to service-connected lumbar spine and bilateral knee disabilities.


REPRESENTATION

Veteran represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

D. Cheng, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1979 to November 1984.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts

In a December 2011 rating decision, the RO granted an increased 30 percent disability rating for the Veteran's post-operative chondromalacia patella of the left knee, effective from April 10, 2008. As this was not a full grant of the benefit sought on appeal, and the Veteran did not indicate that he agreed with the increased rating, his claim has remained on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993).

In a March 2015 rating decision, the RO granted a separate 40 percent rating for post-operative chondromalacia patella of the left knee with limitation of extension under diagnostic code 5261, effective April 26, 2012. The Veteran has not appealed the assigned rating or effective date for post-operative chondromalacia patella of the left knee with limitation of extension, and thus this issue is not before the Board and will not be addressed herein. The Board will focus on the Veteran's claims for increased ratings of his post-operative chondromalacia patella of the left and right knees, rated under diagnostic code 5257 for recurrent subluxation or lateral instability of the knee, which are currently before the Board. 

The issue of entitlement to service connection for right foot neuropathy, to include as secondary to service-connected lumbar spine and bilateral knee disabilities, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT

1. Post-operative chondromalacia patella of the left knee does not result in limited flexion to 60 degrees and the preponderance of the evidence is against clinical findings of locking; effusion; ankylosis; removal of semilunar cartilage; or impairment of the tibia and fibula.

2. Post-operative chondromalacia patella of the right knee does not result in limited flexion to 60 degrees or limitation of extension to 30 degrees and the preponderance of the evidence is against clinical findings of recurrent subluxation or lateral instability; locking; effusion; ankylosis; removal of semilunar cartilage; or impairment of the tibia and fibula.


CONCLUSIONS OF LAW

1. The criteria for an increased disability rating in excess of 10 percent or for a separate rating under another diagnostic code (other than 5261) for post-operative chondromalacia patella of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5014, 5256, 5257, 5258, 5259, 5260 (2017).

2. The criteria for an increased disability rating in excess of 30 percent or for a separate rating under another diagnostic code for post-operative chondromalacia patella of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5014, 5256, 5257, 5258, 5259, 5260, 5261 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran contended in an August 2009 statement that the June 2008 VA examination is inadequate because the examiner did not perform an x-ray examination or check his range of motion. Further, the Veteran asserted that the examiner committed fraud by not performing any of the tests; only measuring scars, asking questions; and having the Veteran walk across the room and back. The June 2008 VA examination report includes detailed notes of a musculoskeletal examination, including range of motion measurements after repetitive use testing and instability testing. The Veteran was also afforded VA examinations in June 2010 (for right foot neuropathy), April 2012, and January 2013 which included objective testing to determine the severity of the Veteran's bilateral knee disabilities. The VA examiners reviewed the Veteran's medical history and current symptoms, made clinical observations, performed physical examinations, and collectively provided clear explanations in support of the opinions and findings. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"); see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). 

Thus, the Board finds that the Veteran's allegation that the 2008 examiner did not check his range of motion is unsupported. VA has satisfied its duty to assist when it provided a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions able to provide competent medical evidence, whether that is a doctor, nurse practitioner or physician's assistant. See Cox v. Nicholson, 20 Vet.App. 563, 569 (2007) (physician's assistant was competent to perform examination). The Board may assume a that VA medical examiner is competent. See Cox, 20 Vet.App. at 569; Hilkert v. West, 12 Vet.App. 145, 151 (1999) (VA may presume the competence of an examiner, and an appellant bears the burden of persuasion to show that the Board's reliance on an examiner's opinion was in error). The opinions provided include a discussion of the facts in this case, medical principles, and a thorough rationale, where the examiner cited to specific medical records that substantiated his opinion. The Veteran has not offered competent and probative evidence in support of his assertions to persuade the Board that the June 2008, June 2010, April 2012, or January 2013 VA examinations performed were inadequate Thus, the Board finds the examinations, findings, and opinions provided in June 2008, June 2010, April 2012, or January 2013 to be adequate.

VA has satisfied its duties to notify and assist and the Board may proceed with appellate review.

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). The percentage ratings in the Rating Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2017). The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id.

Diagnostic Codes (DCs) are assigned by the rating officials to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. See 38 C.F.R. § 4.7 (2017). When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. See id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3. The Rating Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different DCs - a practice known as pyramiding - is prohibited. See 38 C.F.R. § 4.14 (2017).

In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims).

In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. at 311. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. 

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 

Under DC 5010, arthritis due to trauma, substantiated by x-ray findings, is to be rated as degenerative arthritis under DC 5003. Under DC 5003, degenerative changes established by x-ray findings are rated on the basis of limitation of motion under the appropriate DC for the specific joint involved. 
Under DC 5260, limitation of flexion of the knee to 60 degrees warrants a noncompensable rating. Limitation of flexion of the knee to 45 degrees warrants a 10 percent rating. Limitation of flexion of the knee to 30 degrees warrants a 20 percent rating. Limitation of flexion of the knee to 15 degrees warrants a 30 percent rating.

Under DC 5261, limitation of extension of the knee to 5 degrees warrants a zero or noncompensable rating. Limitation of extension of the knee to 10 degrees warrants a 10 percent rating. Limitation of extension of the knee to 15 degrees warrants a 20 percent rating. Limitation of extension of the knee to 20 degrees warrants a 30 percent rating. Limitation of extension to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 

Under DC 5256, a 30 percent rating is warranted for ankylosis of the knee with favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is warranted for ankylosis of the knee with flexion between 10 degrees and 20 degrees. 

Under DC 5257, a 10 percent rating is warranted for slight knee impairment, that is, recurrent subluxation or lateral instability. A 20 percent rating is assigned for a moderate degree of impairment, and a maximum rating of 30 percent is assigned for severe impairment.

Under DC 5258, a 20 percent rating is warranted for cartilage, semilunar dislocated, with frequent episodes of locking, pain, and effusion into the joint. The 20 percent rating is the only rating available under DC 5258.

DC 5259 provides that a 10 percent rating is warranted for surgically removed cartilage that is symptomatic. A semilunar cartilage is one of the menisci of the knee joint. A 10 percent rating is also the highest schedular evaluation allowed under DC 5259.

Under DC 5262, pertaining to impairment of the tibia and fibula, malunion with slight knee or ankle disability warrants a 10 percent rating; malunion with moderate knee or ankle disability warrants a 20 percent rating; malunion with marked knee or ankle disability warrants a 30 percent rating; and nonunion of the tibia and fibula, with loose motion, requiring brace warrants a maximum 40 percent rating. 38 C.F.R. § 4.71a. 

Normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II.

VA's General Counsel has provided guidance concerning increased rating claims for knee disabilities. In VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997), it was held that a veteran who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, provided that any separate rating must be based upon additional disability. When a knee disorder is already rated under DC 5257, the veteran must also have limitation of motion under DC 5260 or DC 5261 in order to obtain a separate rating for arthritis.

In VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998), the VA General Counsel clarified that when a veteran has a knee disability evaluated under DC 5257, to warrant a separate rating for arthritis based on x-ray findings, the limitation of motion need not be compensable under DC 5260 or DC 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating.

The VA General Counsel has also held that separate ratings could be provided for limitation of knee extension and flexion under DCs 5260 and 5261, as long as both ranges of motion meet the criteria for a compensable rating. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004).

The Veteran seeks increased disability ratings in excess of 10 percent for his service-connected left knee disability and in excess of 30 percent for his service-connected right knee disability. The Veteran's left and right knee disabilities are currently rated under DC 5257 for slight and severe recurrent subluxation or lateral instability. In addition, the Veteran was also awarded a separate 40 percent rating under DC 5261 for limitation of extension associated with the left knee disability, effective April, 26, 2012. However, as previously mentioned, the Veteran has not indicated that he disagreed with the assigned rating or effective date; therefore the issue is not before the Board. In evaluating the Veteran's current level of disability for his left and right knee disabilities, the Board will consider all applicable DCs. 

At the outset, the Board notes that the evidence does not support an award for an increased rating for the left or right knee under DC 5256 for ankylosis of the knee; DC 5259 for symptomatic removal of semilunar cartilage; DC 5262 for impairment of tibia and fibula, or; DC 5263 for genu recurvatum as none of these disabilities have been demonstrated at any VA examinations performed. In June 2008 and July 2010 VA examination reports, the VA examiners specifically noted that there was no ankylosis in either knee. The April 2012 and January 2013 VA examiners specifically noted that there was no tibiofibular abnormality, symptomatic removal of semilunar cartilage, or genu recurvatum in either knee. 38 C.F.R. § 4.71a, DCs 5256, 5259, 5262, 5263 (2017). 

The Board has considered the Veteran's post-operative chondromalacia patella of the knees as evaluated as 20 percent disabling under DC 5262 for impairment of the tibia and fibula with malunion with moderate knee or ankle disability and 40 percent disabling for impairment of the tibia and fibula with nonunion with loose motion and requiring brace, for the left and right knees, respectfully. There are no findings of impairment of the tibia and fibula of the left or right knee at any time during the appeal period, which was confirmed by the VA examinations provided. Therefore, a rating under this DC for either knee would not be applicable.

The Board has also considered the Veteran's left and right knee disabilities as evaluated under DC 5258 for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. As noted above, under DC 5258, a 20 percent evaluation is assigned for cartilage, semilunar dislocated, with frequent episodes of locking, pain, and effusion into the joint. In the April 2012 and January 2013 VA examination reports, the examiners noted that the Veteran did not have any meniscus (semilunar cartilage) conditions or surgical procedures for a meniscal condition, and therefore did not check the boxes for frequent episodes of - joint "locking," pain, and effusion. Thus, the preponderance of the evidence is against a finding that the Veteran has a meniscus abnormality in either knee that resulted in frequent episodes of locking and effusion in the knee joint, and a 20 percent rating under DC 5258 is not applicable at any point of the appeal. 

The Veteran's left knee is currently rated under DC 5257 with a 10 percent disability rating. The Veteran has reported that his knees "gave out" or "buckled" which caused frequent falls including in March 2009 and April 2009 VA medical records, during the June 2010 (for right foot neuropathy) and January 2013 VA examinations; and in March 2012 and September 2013 statements. While the Veteran reported "giving out," "buckling," and falls, following objective instability testing performed at the June 2008 and June 2010 VA examinations afforded the Veteran for his bilateral knee disabilities, the examiners made specific findings that the Veteran did not have any lateral instability. For example, the June 2008 VA examiner indicated in his report that the varus/valgus, McMurray's, and Drawer tests for instability were all negative in the bilateral knees. The examiner specifically noted "both knees appear normal." The June 2010 VA examiner indicated that there was tenderness to the inferior to patella upon ligament bilaterally but there were no signs of edema, instability, abnormal movement, effusion, weakness, heat, deformity, guarding of movement, malalignment, drainage, or subluxation. Further, medial/lateral collateral ligaments; anterior/posterior cruciate ligaments; and medial/lateral meniscus stability tests were all within normal limits for both knees. 

The April 2012 and January 2013 VA examiners indicated instability of station of both lower extremities as contributing factors of disability for functional loss, impairment, or additional limitation of range of motion after repetitive use, however both indicated that they were unable to test joint stability. Moreover, both examiners made a specific finding that there was no evidence or history of recurrent patellar subluxation or dislocation. While the Veteran has made subjective claims of his knees "giving out" or "buckling" and reported falls, the preponderance of the evidence is against a finding that the Veteran exhibited "slight" or "moderate" recurrent subluxation or lateral instability in the left and right knees, at any point in the appeal period. Therefore, a rating greater than 10 percent under DC 5257 is not appropriate for the left knee. The Board also finds that a rating under this DC for the right knee is not applicable, as will be discussed in more detail below.
As noted above, a 30 percent rating under DC 5257, effective April 10, 2008, for the Veteran's right knee disability was granted by the RO in a December 2011 rating decision. The RO indicated that the 30 percent rating was based on a showing of extension of the right knee limited to between 20 and 29 degrees. Specifically, the RO cited the June 2010 VA examination which revealed extension limited to 20 degrees. Assignment of a particular DC is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in DCs by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). While the evidence shows that the Veteran has been rated under DC 5257 for his right knee disability, the Board finds that this DC on the code sheet was not consistent with the clinical findings made in the December 2011 award of an increased rating to 30 percent. For examination, in assigning the 30 percent rating, the RO wrote, "Based on consideration of the record and the additional evidence, which showed extension is limited to 20-29 degrees, we assigned an evaluation of 30 percent." Thus, the appropriate DC is 5261, for limitation of extension. See Butts, 5 Vet. App. 532 (noting that a choice of DC should be upheld if supported by explanation and evidence). See also Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the DC associated with it is changed to determine more accurately the benefit to which a veteran may be entitled).

A June 2008 VA examination report reflects extension to zero degrees or within normal limits. In June 2010, the Veteran was afforded a VA examination for his claimed right foot neuropathy which revealed range of motion measurements of the right knee with a limitation of extension to 20 degrees. April 2012 and January 2013 VA examinations indicate right knee extension limited to 20 degrees. The evidence does not show limitation of right knee extension greater than 20 degrees at any point of the appeal period. Under DC 5261, extension limited to 20 degrees warrants a 30 percent disability rating but no higher. Therefore, the Board finds that the appropriate rating for post-operative chondromalacia patella for the right knee with limitation of extension for the entire appeal period is 30 percent under DC 5261 and no higher.

The Board also finds that the preponderance of the evidence of record is against a separate rating for the left and right knees under DC 5260; the DC used to evaluate limitation of flexion of the knee. As noted above, even a zero percent or noncompensable rating under this DC requires evidence of limitation of flexion of the knee to 60 degrees. This has not been demonstrated in this case. At VA examinations, conducted in June 2008, June 2010, April 2012, and January 2013, flexion was limited, at worst, to 90 degrees and 100 degrees for the left and right knees, respectfully. Flexion bilaterally was 140 degrees or within normal limits as measured during the June 2008 VA examination. Thus, in view of the foregoing, separate disability ratings for left and right knee flexion are not warranted under DC 5260. 

The Board has also considered the effect of pain and weakness in evaluating the Veteran's bilateral knee disabilities. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. 202. The evidence of record reveals complaints of bilateral knee pain with no evidence of any additional limitation in range of motion following repetitive-use testing during the June 2008 and June 2010 VA examinations. The Board would like to emphasize that the rating schedule does not provide a separate rating for pain. See Spurgeon, 10 Vet. App. 194. The June 2008 VA examiner indicated that both of the Veterans knees appeared normal. During the June 2010 VA examination, the Veteran reported flare-ups that occurred as often as three to four times a week which were precipitated by physical activity and stress, lasted several days, and resulted in impairment going up and down stairs, lifting, and walking without a cane, however, the Veteran was able to perform repetitive-use testing bilaterally without an additional limitation in range of motion. During the April 2012 VA examination, the examiner noted constant pain that was exacerbated by knee range of motion and weight bearing activities but the Veteran denied flare-ups that impacted the function of his knees or lower leg. The examiner indicated that the Veteran was unable to perform repetitive use testing due to severe bilateral lower extremity muscle cramping and spasm. The January 2013 VA examination report indicates constant pain was exacerbated by knee range of motion and weight bearing activities, that the Veteran wore bilateral knee braces, and had leg spasms and constant leg pain. The examiner did not note whether the Veteran had flare-ups by that the Veteran was unable to perform repetitive-use testing with three repetitions due to pain and spasms of the lower legs. The Board notes that the Veteran has been in receipt of service-connection for radiculopathy of the lower right extremity and lower left extremity at 20 percent and 10 percent disabling, respectfully, effective January 12, 2012.

There is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation on the particular range of motion. See Mitchell, 25 Vet. App. 32. The Court has discounted the notion that the highest disability ratings are warranted under DCs 5260 and 5261 where pain is merely evident as it would lead to potentially "absurd results." Id. at 10-11. As noted above, despite the Veteran's subjective complaints of bilateral knee pain, he demonstrated 140 degrees, 128 degrees (with pain at 120 degrees), 100 degrees (with pain), and 100 degrees (with pain) of flexion of the right knee at the June 2008, June 2010, April 2012, and January 2013 examinations, respectively. He also demonstrated 140 degrees, 126 degrees (with pain at 120 degrees), 90 degrees, and 90 degrees (with pain) of flexion of the left knee at the at the June 2008, June 2010, April 2012, and January 2013 examinations, respectively. The Veteran's right knee demonstrated full extension (0 degrees) during the June 2008 examination and 20 degrees at each of the June 2010, April 2012, and January 2013 VA examinations. Thus, even in contemplation of the tenets of 38 C.F.R. §§ 4.40 and 4.45, the Board finds the above evidence does not support an increased evaluation or a separate evaluation for the service-connected left knee disability at any time during the appeal period.

In sum, the evidence does not show that a disability rating in excess of 10 percent for the left knee or 30 percent for the right knee or a separate rating under another DC for post-operative chondromalacia patella is warranted. 

As the preponderance of the evidence is against the claims for a higher rating for post-operative chondromalacia patella of the left and right knees, the benefit of the doubt doctrine is not for application, and the Veteran's claims are denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 55.

ORDER

A disability rating in excess of 10 percent for post-operative chondromalacia patella of the left knee is denied.

A disability rating in excess of 30 percent for post-operative chondromalacia patella of the right knee is denied.


REMAND

A review of the record discloses further development is needed with respect to the Veteran's claim of entitlement to service connection for right foot neuropathy, to include as secondary to service-connected lumbar spine and bilateral knee disabilities.

Service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury.

The Veteran was afforded a VA examination in June 2010. The VA examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's right foot neuropathy is related to his established knee condition. The examiner provided the rationale that the Veteran's service-connected knee disabilities took place on a sudden landing during repelling form a helicopter in October 1982 due to varying heights from the ground which caused a sudden abrupt stoppage by the repelling Veteran. He elaborated that the lax patellar tendons required surgical shortening during two procedures in 1982 and 1983 with a third procedure to remove hardware and the subsequent right foot neuropathy took place on complaints of the same for the previous 13 years. The examiner added that extensive neurologic workup has revealed no objective finding able to explain the right foot neuropathy, specifically testing in 2000, 2005, and 2009 provided no etiology for the complaints and the etiology of the peripheral nerve disease is unclear based upon a review of the medical records.

In a May 2011 statement, the Veteran contended that his right foot neuropathy results from an injury that was caused when his service-connected left knee buckled and caused his ankle to roll over resulting in a severe sprain. An addendum opinion was provided on secondary service connection (knees), as discussed above. 

In an October 2016 statement through his representative, the Veteran asserted that the VA examination for his lumbar spine in January 2013 found that the lumbar spine disability was associated with the right foot drop and the examiner also found chronic pain syndrome of the knees, and that he believed service connection for right foot neuropathy is warranted due to the lumbar spine disability. 

When VA undertakes to obtain an examination, it must ensure that the examination and opinion therein is adequate. Barr, 21 Vet. App. 303. In review of the VA opinion provided in June 2010, the Board notes that an opinion as to aggravation of the Veteran's right foot neuropathy by the service-connected bilateral knee disabilities was not provided. The Court of Appeals for Veterans Claims (Court) has indicated that findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under 38 C.F.R. § 3.310 (b). El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). An opinion on whether the Veteran's right foot neuropathy was aggravated by his service-connected bilateral knee disabilities is necessary. The Veteran also contends that service connection is warranted as secondary to his service-connected lumbar spine disability, thus an opinion is necessary to address that assertion. An opinion on direct service-connection should also be provided; therefore a remand is in order. 

Further, in the May 2011 statement, the Veteran also asserted that he sought medical treatment from Dr. Foster, a podiatrist. While the Veteran reported that the necessary information is in his VA records, there are no medical records from a Dr. Foster associated with the claims file. Thus, an effort must be made to locate and associated any relevant medical records, VA between, with the Veteran's claims file.

On remand, the Veteran should be asked to furnish, or to furnish an authorization to enable VA to obtain, any additional private treatment records from providers who treated him for his right foot neuropathy, to include files from Dr. Foster. 
 
Accordingly, the case is REMANDED for the following action:

1. On remand, the Veteran should be asked to furnish, or to furnish an authorization to enable VA to obtain, any additional private treatment records from providers who treated him for his lumbar spine disability, bilateral knee disabilities, and his right foot neuropathy, to include files from Dr. Foster.

2.  Return the Veteran's claims file to the June 2010 VA examiner who performed the examination and provided an opinion for right foot neuropathy, or to a qualified medical professional if the examiner is unavailable, to provide an addendum opinion. If the examiner finds that an examination is necessary, then schedule an examination. If an examination is scheduled, any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. The rationale for all opinions expressed must be provided. Based on examination results (if applicable) and a review of the record the examiner should identify any right foot disabilities present.

The examiner is to review the entire record, examine the Veteran, if determined necessary. The examiner is informed that the Veteran is service-connected for post-operative chondromalacia patella of the left and right knees and degenerative joint disease L5-S1 with back pain and spasms.

The examiner is asked to answer the following questions: 

a. Whether any diagnosed right foot disability, to include neuropathy, is at least as likely as not (50 percent or greater likelihood) had its onset in service (between May 1979 and November 1984), to include as a result of repelling from a helicopter in October 1982?

b. Whether any diagnosed right foot disability, to include neuropathy, is at least as likely as not (50 percent or greater likelihood) proximately due to or, alternatively, aggravated (permanently worsened beyond the natural progression of the disease) by the service-connected bilateral knee disabilities.

c. Whether any diagnosed right foot disability, to include neuropathy, is at least as likely as not (50 percent or greater likelihood) proximately due to or, alternatively, aggravated (permanently worsened beyond the natural progression of the disease) by the service-connected lumbar spine disability.

A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

3. After the above is complete, readjudicate the Veteran's claim. If the claim remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative. 

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).




______________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs