Citation Nr: 1751345 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 15-44 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for status post total arthroplasty, left knee (left knee replacement). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Timothy C. King, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Army from July 1958 through July 1961. The matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2010 rating decision of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans' Affairs (VA), denying, among other matters, the issue currently on appeal. A request for reconsideration of this decision was received by VA in December 2010. The denial of the issue currently on appeal was continued in an August 2011 rating decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets additional delay, a remand is necessary to afford the Veteran due process of law and to ensure that there is a complete record upon which to decide his appeal, so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). The Veteran is service connected for degenerative joint disease of the left ankle and degenerative joint disease of the lumbosacral spine. Service records and service treatment records reflect that the Veteran earned a Parachutist Badge and that he experienced an in-service parachute injury in September 1959. Post-service medical records show that the Veteran had a tear of the meniscus with a large popliteal cyst, and underwent left knee surgery in 1974, and that the Veteran subsequently developed osteoarthritis in the left knee and had a left knee replacement in 2006. The Veteran contends that his left knee replacement results from either his in-service injury, trauma from parachute jumps or is secondary to service-connected disability or disabilities. In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Also, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. See 38 C.F.R. § 3.310(b); Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The record contains VA examinations from January 2010 and January 2015 addressing the Veteran's left knee replacement which confirm the disability. The 2010 opinion stated that the Veteran's left knee replacement was not caused by or a result of the service injury "since he admitted during a clinic visit in 1974 that his knee was not injured during military service and did not begin to bother him until the 1970s." The 2015 opinion stated that the left knee replacement was not related to service and was most likely caused by or as a result of an open meniscectomy. However, the conclusions regarding the Veteran's left knee replacement are inadequate because the VA examiners did not tailor the substance of their analysis to include a discussion of whether the underlying conditions for which the Veteran underwent surgery (left knee tear of the meniscus with a large popliteal cyst) were either caused or aggravated by either the Veteran's in-service injury or parachute jumps. The opinions also do not address whether either of the service connected disabilities (left ankle degenerative joint disease and lumbosacral degenerative joint disease) caused or aggravated either the underlying condition for which the Veteran underwent surgery in 1974 (left knee tear of the meniscus with a large popliteal cyst) or the subsequently developed left knee osteoarthritis that ultimately caused the Veteran to need a left knee replacement. As such, a supplemental addendum opinion-based on full review of the record and supported by stated rationale-is needed to fairly decide the issue on appeal. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. §§ 3.159, 19.9(a) (2016); Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran and his representative a letter requesting that he provide sufficient information and, if necessary, authorization to obtain any additional evidence from all VA and non-VA health care providers who have treated him for the left knee replacement, the left ankle degenerative joint disease, the lumbosacral degenerative joint disease, and the left knee tear of the meniscus with a large popliteal cyst that is not currently of record. Specifically, request that the Veteran furnish, or furnish appropriate authorizations to obtain, all outstanding, pertinent private (non-VA) records. If the Veteran responds, assist him in obtaining any additional evidence identified, following current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 2. After all records and/or responses received from each contacted entity have been associated with the claim (to the extent possible), refer the Veteran's entire claims file to a medical professional of appropriate expertise. If the medical professional determines that an in-person examination of the Veteran is necessary, schedule the Veteran for a VA examination as to the etiology of the left knee replacement, the left knee osteoarthritis, and the left knee tear of the meniscus with a large popliteal cyst. The contents of the electronic claim files (in VBMS and Virtual VA), to include a copy of this Remand, are to be made available to the designated examiner for review. The examiner is to note in the medical report that this action has been accomplished. All tests and studies, as well as the clinical findings contained therein, should be reported in detail. The examiner is asked to provide an opinion addressing the following questions: a. Is it as least as likely as not (50 percent or greater probability) that any left knee tear of the meniscus with a large popliteal cyst observed in 1974 was caused or aggravated by the active service parachute jumps? b. Is it as least as likely as not (50 percent or greater probability) that any left knee tear of the meniscus with a large popliteal cyst observed in 1974 was caused or aggravated by (1) the active service parachute injury or (2) treatment for said injury or (3) residuals of either? c. Is it as least as likely as not (50 percent or greater probability) that the left ankle degenerative joint disease either caused or aggravated beyond its natural progress the left knee tear of the meniscus with the left knee large popliteal cyst observed in 1974? d. Is it as least as likely as not (50 percent or greater probability) that the left ankle degenerative joint disease either caused or aggravated beyond its natural progress the left knee osteoarthritis? e. Is it as least as likely as not (50 percent or greater probability) that the lumbosacral degenerative joint disease either caused or aggravated beyond its natural progress the left knee tear of the meniscus with the large popliteal cyst observed in 1974? f. Is it as least as likely as not (50 percent or greater probability) that the lumbosacral degenerative joint disease either caused or aggravated the left knee osteoarthritis? Aggravation is defined as permanent exacerbation beyond the natural progression of the condition. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The medical professional should discuss the particulars of this Veteran's medical history and the relevant medical sciences that apply to this case, which may reasonably make clear the medical guidance in the study of this case. If any requested opinion cannot be provided without resort to mere speculation, the examiner should explain in full why this is the case and identify any additional facts or evidence (if any) that would allow for a more definitive opinion. 3. After the development above has completed, review the file and ensure that all development sought in this REMAND is completed. Arrange for any further development indicated by the results of the development requested above, and re-adjudicate the issue of service connection for the left knee replacement to include service connection on a secondary basis. If determination remains adverse to the Veteran, the AOJ should furnish an appropriate supplemental statement of the case and afford the Veteran (and his/her representative) the opportunity to respond. The case should be returned to the Board, if in order, for further review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested. 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). _________________________________________________ B. MULLINS 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).