Citation Nr: 1751975 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 11-32 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a right knee disorder, claimed as secondary to service-connected status post-operative meniscus tear of the left knee. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Brennae L. Brooks, Associate Counsel INTRODUCTION The Veteran had active duty service from February 1991 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2011 by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2016, the Board remanded the case for additional development and it now returns for further appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017). The Veteran contends that he has a right knee disorder that is caused or aggravated by his service-connected left knee disability as he has overcompensated for such disability, thereby putting more weight on his right knee. He also claims that, as a result of his left knee disability, he has fallen. In this regard, the Veteran's service treatment records are negative for any complaints, treatment, or diagnoses referable to his right knee. Rather, the first complaint of right knee pain appears to be in March 1997. In October 1999, he complained of bilateral knee pain and, as relevant, was assessed with right knee pain, secondary to degenerative joint disease (DJD). The Veteran underwent a VA examination in October 2010, at which time X-rays revealed a likely bone island or healing nonossifying fibroma, but were otherwise negative. The examiner, a nurse practitioner, noted that the Veteran was not diagnosed with any chronic or recurrent right knee condition while on active duty, and had been out of the military for a decade. As such, he opined that the cause of the Veteran's right knee pain was the aging process. The examiner further noted that the Veteran did not have any leg length discrepancy, abnormal gait, or ligament laxity and, as such, he did not have any condition to explain his right knee pain other than the aging process. The examiner further reported that the Veteran did not have a substantiated history of falling until October 2010. Consequently, he opined that the Veteran's right knee condition was not related to the service-connected left knee condition. In February 2016, the Board remanded the matter to afford the Veteran another VA orthopedic examination to be conducted by an appropriate specialist so as to obtain an opinion addressing whether the Veteran's current right knee disorder was caused or aggravated by his service-connected left knee disability. Thereafter, the Veteran underwent such examination in April 2017, which was conducted by a physician. At such time, the examiner only noted a diagnosis pertinent to the Veteran's left knee; however, his right knee had limited range of motion and was noted to have a meniscal tear with frequent episodes of joint pain and effusion on examination. Further, the examiner found that the Veteran's right knee symptoms were due to meniscus injury and DJD, and noted that he had undergone multiple arthroscopies since 2005 and imaging studies revealed arthritis of the right knee. Following a review of the record and an examination of the Veteran, the examiner opined that it is less likely as not that the current right knee condition was caused by or aggravated by the Veteran's service-connected left knee condition. In support of such opinion, the examiner indicated that he knew of no medical authority or peer reviewed medical literature that supports the contention that a left knee meniscal tear with DJD can be causative to or aggravate the development of the same condition on the contralateral knee. He also noted that the Veteran's gait is non-antalgic. The examiner further observed that meniscal tears are the result of injury, such as the Veteran's well-documented left knee injury in service, and DJD is the result of chronic weight bearing over a lifetime, and may be aggravated by the injury-related meniscal tear. In this regard, he noted that bilateral knee X-rays were normal in 1998 and right knee MRI was normal in 2000, indicating the injury occurred over 8 years after discharge from military service. However, the examiner failed to address the Veteran's complaints of right knee pain in March 1997 and October 1999, or his reports of overcompensating and falling due to his left knee disability. Therefore, a remand is necessary in order to obtain an addendum opinion addressing such matters. Finally, VA treatment records obtained in connection with the Board's February 2016 remand reflect that the Veteran reported that he is in receipt of disability benefits from the Social Security Administration (SSA) for his bilateral knee and back disabilities. Consequently, as such records may be relevant to the instant claim, a remand is necessary in order to obtain any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). Accordingly, the case is REMANDED for the following action: 1. Any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim, should be obtained from SSA and associated with the claims file. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A (b)(2) and 38 C.F.R. § 3.159(e). 2. Return the record to the VA examiner who conducted the Veteran's April 2017 knee examination. The record and a copy of this Remand must be made available to the examiner. If the April 2017 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, please address the following inquires: (A) Identify all diagnoses referable to the Veteran's right knee since his June 2010 claim. (B) Is it at least as likely as not (i.e., 50 percent or greater probability) that any diagnosed right knee disorder is caused or aggravated by the Veteran's service-connected left knee disability? For any aggravation found, the examiner should state, to the best of his/her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. In offering such opinion, the examiner should address the Veteran's complaints of right knee pain in March 1997 and October 1999, as well as his reports of overcompensating and falling due to his left knee disability. The rationale for any opinion offered should be provided. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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. JAEGER 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) (2017).