Citation Nr: 1751160 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-33 806A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a right knee disability, to include as secondary to service-connected disability. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD F. Bulger, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1996 to February 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in April 2014. In June 2016, the Board remanded the right knee claim to the RO for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A remand is necessary to obtain another VA medical opinion. Additional development is needed to determine whether the Veteran has a current diagnosis of any right knee disability. It is also required to obtain an adequate medical opinion on whether a medical nexus exists between any current right knee disability and an injury or incurrence in service, and whether any current right knee disability may be secondarily related to the Veteran's service-connected left knee disability of Patellofemoral Pain Syndrome (PFS). The VA conducted an examination in October 2015 that indicated a diagnosis of PFS in the right knee. In June 2016, the Board found the 2015 VA medical opinion to be inadequate as related to the right knee condition and remanded for a new VA opinion to address the nature and etiology of the Veteran's claimed right knee disability. The examiner who conducted the subsequent examination in August 2016, however, found that the Veteran did not have a current diagnosis associated with the right knee and that there was no objective evidence of a chronic right knee condition; the 2016 examiner declined to render any medical opinions related to a right knee condition. Therefore, the record on appeal contains conflicting medical evidence relating to the nature of the Veteran's current right knee diagnosis; there is a 2016 opinion with no current right knee diagnosis and a 2015 opinion with a current diagnosis of PFS of the right knee. The record also includes a VA Compensation and Pension (C & P) examination in 2011 noting diagnoses of bilateral PFS in 1996 and bilateral patellar tendonitis in 1996. The October 2015 examiner indicated that there is no record of right knee pain or right knee complaints in the service record as a rationale for concluding that it is "less likely than not (less than 50 percent or greater probability) that the Veteran's current [right] knee disability is caused by or related to service or secondary to her left knee." Review of the service records, however, does indicate evidence of right knee patella problems and knee pain during service and a notation related to PFS in the right knee, which predate the April 1996 left knee injury. For example, in March 1996, the service treatment records contain several entries related specifically to right knee and right patellar pain, including a referral to the Rehab Clinic for right knee pain and reports that indicate that the Veteran noted right knee pain while running and kneeling and also that the right knee is "getting stuck." The medical staff noted positive tenderness of the right knee at the "medial joint line, lateral infrapatellar tendon" and, a day later, the treating clinician indicated in his notes: "mild knee pain," "mild tendonitis," "tender peripatellular" and "hypermobile patella," as well as "P/F syndrome." Also, the service treatment records include some evidence of knee pain and an ultrasound of knees as early as February 1996. Upon remand, another VA medical opinion should be obtained to determine whether the Veteran has a current diagnosis of a chronic right knee disability. In addition, the medical opinion should also indicate, with an adequate rationale, whether any current right knee disability was (1) caused by or otherwise etiologically related to service and/or (2) caused or chronically aggravated (non-temporarily worsened beyond the natural progression of the disease or disability) by the service-connected left knee disability. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran to determine if any additional private treatment records exist dated from January 2016 to the present. If any additional records are identified, the RO is instructed to obtain the necessary authorization forms from the Veteran and to take appropriate action to obtain the records and associate them with the claims file; all actions taken to obtain these records should be documented in the claims file. If any records cannot be obtained, notify the Veteran and allow her the opportunity to provide these records, as required by 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain all VA healthcare treatment records dated from January 2016 to the present and associate them with the claims file. If it is deemed that there are no obtainable VA treatment records, notify the Veteran and allow her the opportunity to provide these records, as required by 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Once the claims file is updated with any additional records obtained from private providers and/or VA treatment records, forward the entire claims file, including this remand, to an appropriate VA clinician for an examination with the following instructions: Review the claims file, with particular attention to the Veteran's service treatment records and the VA examinations and opinions, and indicate in your examination report that this review occurred. (a) Clarify and reconcile conflicting medical evidence regarding the nature of any current right knee diagnosis. Identify whether a current diagnosis exists for any chronic right knee condition, to include PFS or any other potential chronic knee condition. Please specifically address the right knee PFS diagnosis in 2015 by the VA examiner and the Veteran's statements in 2016 to the VA examiner regarding her specific concerns with her right knee. Finally, if deemed relevant to any right knee diagnosis, please address inconsistent information in the VA examinations related to the existence of shin splints, crepitus and flare-ups associated with the right knee. (b) Then, provide an opinion for each current right knee disability as to whether it is at least as likely as not (50 percent or greater probability) that the right knee disability began in service or is causally or otherwise etiologically related to service. Please specifically consider the effect on the right knee of any required running or exercise during basic training or required physical therapy during active service. Consider the Veteran's lay statements, including reports in the 2016 examination that she experienced bilateral knee pain beginning in basic training that continued for the rest of her military service of three years and, from 2000 to 2016, has experienced chronic bilateral knee pain, "knees giving way," and knee pain when using stairs or sitting for long periods. (c) Also, provide an opinion for each current right knee disability as to whether it is at least as likely as not (50 percent or greater probability) caused, proximately due to, or, alternatively, chronically aggravated by, the Veteran's service-connected left knee disability. Aggravation is defined as non-temporary worsening beyond the natural progression of the disease or disability. The clinician is advised that the Veteran stated during the 2016 examination that she developed right knee pain in 1996 in the absence of any right knee injury, about three weeks after she injured her left knee while running in basic training. Please consider the Veteran's statements to the 2016 examiner that she used her right knee more when the left knee was impaired, including specifically after the 1996 left knee injury during basic training, and that she treated her right knee every time she treated her left knee. The Veteran also indicated to the 2016 examiner that her right knee pain has continued intermittently since service, but her left knee pain occurs daily. Moreover, please consider that the service treatment records indicate some evidence that the Veteran temporarily used a brace for the left knee in April 1996 during in-service physical therapy and that custom orthotics were recommended for her feet. Provide a complete rationale for each requested conclusion or opinion that includes an appropriate level of detail regarding the relevant factual basis, medical reasoning and analysis. If the examiner is unable to furnish any requested opinion without resorting to speculation, then he or she must explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge). 4. After completing this additional record development and obtaining the requested medical opinions, readjudicate the issue on appeal. If the benefit remains denied, issue a supplemental statement of the case and provide the Veteran an appropriate period for response. Thereafter, return the appeal to the Board as warranted. The appellant 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). 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) (2016).