Citation Nr: 1751687 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 14-04 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a right knee disability, to include as secondary to a service-connected left knee disability. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1974 to August 1977 with subsequent service in the United States Army Reserves. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Jurisdiction was subsequently transferred to the RO in Waco, Texas. Service connection for a left knee disability was granted in a December 2013 rating decision. The Board finds that this grant represents a complete grant of the benefits sought on appeal; thus the aforementioned issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200 (2017). 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 regrets the delay, further development is necessary prior to the adjudication of the issue on appeal. The Veteran seeks service connection for a right knee disability. Specifically, the Veteran contends that excessive wear and tear from maintaining a state of combat readiness resulted in the erosion of the cartilage in both of her knees causing severe pain and swelling which has continued since service. Alternately, the Veteran contends that her right knee disability was caused/aggravated by her service-connected left knee disability. In this regard, the evidence of record includes a March 2014 VA examination report in which the examiner opined that the Veteran's right knee disability was less likely than not caused by her service-connected left knee disability, and a September 2014 addendum opinion in which the examiner opined that it is less likely than not that the Veteran's right knee condition, including osteoarthritis and malicious malalignment syndrome, was aggravated by the Veteran's service-connected left knee osteoarthritis. The evidence of record also includes a June 2017 private opinion from Dr. Daniel Mijares (Dr. Mijares) which states that the Veteran's right knee pain is due to overwork and compensation from the opposite side. The Board finds that the medical opinions of record do not provide an adequate basis on which to decide the claim. The VA examiner opinions do not address the Veteran's competent contention that she has experienced a continuation of right knee pain since service, or the private opinion from Dr. Mijares; and the private opinion does not provide a sufficient rationale. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided) see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Therefore, an additional opinion is required. Additionally, although some Army Reserve records have been obtained, it is unclear from the record whether an attempt was made to obtain all of the Veteran's Army Reserve records. As the Veteran's records pertaining to any treatment for a right knee injury from any of her periods of active or inactive duty for training are directly relevant to the claim on appeal, further attempts must be made to obtain these records prior to adjudication. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of her relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Contact the appropriate U.S. Army Reserve Records Depository and obtain all service personnel records, and service treatment records from the Veteran's service with the U.S Army Reserve. Conduct any other development; including contacting any other government records repositories that may have the Veteran's service treatment records and service personnel records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. 3. Schedule the Veteran, if necessary, for a VA examination to determine the nature, etiology, and date of onset of the Veteran's right knee disability. The claims file should be made available to the examiner and review of the file should be noted in the requested report. The examiner should record the full history of the identified disability, including the Veteran's competent account of her symptoms. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the diagnosed right knee disability had its onset during active service, or within one year of the Veteran's separation from active service, or is otherwise related to service? The examiner should discuss the Veteran's contention that she has experienced a continuation of right knee pain since service. The examiner should also discuss the Veteran's contention that she was first diagnosed with osteoarthritis in her right knee in her late 30's, and whether the diagnosis of arthritis is suggestive of trauma such as that the Veteran argues she incurred in service. (b) Is it at least as likely as not that the diagnosed right knee disability was caused or aggravated by the Veteran's service-connected left knee disability? The examiner should discuss the Veteran's contention that her right knee disability results from having to bear extra weight to compensate for her left knee disability. The examiner should also discuss the private opinion from Dr. Mijares. All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 3. Readjudicate the claim on appeal. If the benefits requested on appeal are not granted in full, the Veteran and her representative should be furnished a supplemental statement of the case and provided an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran 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.S. §§ 5109B, 7112 (LexisNexis 2017). _________________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.S. § 7252 (LexisNexis 2017), 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) (2017).