Citation Nr: 1751555 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 09-19 887 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for bilateral knee arthritis, to include as secondary to service-connected right knee and/or service-connected left knee retropatellar pain syndrome with bursitis. 2. Entitlement to an increased rating for right knee retropatellar pain syndrome with bursitis. 3. Entitlement to an increased rating for left knee retropatellar pain syndrome with bursitis prior 4. Entitlement to total disability rating based on individual unemployability (TDIU). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Asante, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1993 to March 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2008 and July 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In an April 2014 rating decision, the RO granted service connection for left knee and right knee instability as secondary to service-connected retropatellar pain syndrome and assigned a rating of 10 percent for each knee. The Veteran submitted timely notices of disagreement (NODs) in April 2014 and May 2014. In June 2017, the RO issued a Statement of the Case (SOC) continuing the assigned rating of 10 percent for right and left knee instability. Following the issuance of the SOC, the Veteran did not perfect an appeal for her right knee and left knee instability claims. Therefore, these issues are not properly before the Board and will not be addressed further. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in July 2013. The Board remanded the appeal in June 2014 for further development. The service connection claim is addressed below, and the remaining issues on appeal are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's bilateral knee arthritis is proximately due to her service-connected retropatellar pain syndrome with bursitis. CONCLUSION OF LAW The criteria for service connection for bilateral knee arthritis as secondary to service-connected bilateral knee retropatellar pain syndrome with bursitis are met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that her bilateral knee arthritis is secondary to her service-connected bilateral retropatellar pain syndrome with bursitis. She maintains that her arthritis causes pain and discomfort that interferes with her everyday way of life. See June 2009 Informal Claim. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Secondary service connection generally requires (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran has a current diagnosis of bilateral knee degenerative arthritis. See February 2016 private treatment record and February 2014 and February 2016 VA examination reports. She is service-connected for right knee and left knee retropatellar pain syndrome with bursitis. Therefore, the first and second elements of secondary service connection are met. The crux of the secondary service connection claim therefore rests on element three, whether there is a relationship between the diagnosis of bilateral knee arthritis and the Veteran's service-connected bilateral retropatellar pain syndrome with bursitis. Here, there is conflicting evidence. Specifically, the February 2012 examiner opined that there was no current evidence of arthritis but arthritis would eventually present itself due to normal aging and significant obesity that causes wear and tear on the knees. Further, the examiner stated that if the Veteran's retropatellar pain syndrome was the cause of any degenerative changes, the degeneration would require the specific area of cartilage loss to be along the medial aspect of the patellofemoral surface, which was not evident upon review of the radiographs. Lastly, the examiner concluded that any early degenerative changes, if present, were not due to retropatellar pain syndrome based on the location and were more related to obesity over a prolonged time frame. In favor of the claim is the opinion of the March 2016 VA examiner, who concluded that the Veteran's "patellofemoral degenerative changes" were "compatible with her diagnosis of her service-connected retropatellar syndrome" and represented a "progression" of her retropatellar pain syndrome. Given the positive and negative evidence, the benefit-of-the-doubt doctrine is applicable in this case, and secondary service connection is established. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral knee arthritis as secondary to service-connected bilateral knee retropatellar pain syndrome with bursitis is granted. REMAND The AOJ must implement the above-detailed award of benefits before the Board may appropriately assess the rating assigned to the Veteran's bilateral knee disabilities on appeal. Moreover, retrospective opinions that comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016) are needed, as well as any updated treatment records. Finally, in regards to the issue of entitlement to a TDIU, this matter was denied in the April 2014 rating decision. In May 2014, the Veteran filed a timely NOD. To date, no SOC addressing this matter has been issued by the RO. As such, the issuance of a SOC is required on remand. See Manlicon v. West 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a SOC as to the issue of entitlement to TDIU. The Veteran should be informed that she must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. 2. Obtain all outstanding VA treatment records. 3. Then, refer the claims file to a VA examiner for preparation of a retrospective opinion. The claims file, to include a copy of this remand must be made available to and be reviewed by the examiner. No additional examination is needed, unless the examiner determines otherwise. The examiner is asked to address the following: (a) Please provide an opinion as to the full range of motion of both knees throughout the appeal period (since July 2008): in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. If the examiner is unable to provide such an opinion, he or she should clearly explain the basis for that conclusion. (b) Considering the Veteran's reported history, please also provide an opinion describing functional impairment of both knees due to flare-ups throughout the appeal period (since July 2008), accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. 4. Then, after taking any development deemed necessary, readjudicate the issues on appeal. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs