Citation Nr: 1752885 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 14-07 452 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to a rating in excess of 10 percent for retropatellar pain syndrome, right knee. 2. Entitlement to service connection for a low back disability, to include as secondary to service-connected retropatellar pain syndrome, right knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Sanford, Counsel INTRODUCTION The Veteran served on active duty from September 1990 to January 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In January 2017, the Veteran testified at a Board video-conference hearing. A transcript of that proceeding is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Regarding the increased rating claim, the United States Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court in Correia interpreted 38 C.F.R. § 4.59 to establish additional requirements that must be met prior to finding that a VA examination is adequate. In addition, as relevant to the present case, the Court stated in Correia that knees were "undoubtedly weight-bearing." Id. A review of the claims file reveals that the previous VA examination reports and April 2017 Disability Benefits Questionnaire (DBQ), provided by the Veteran, include only active range of motion findings and do not include range of motion findings for passive range of motion. They also do not specify whether the results are weight-bearing or non-weight-bearing. As the previous examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a new examination is necessary to decide the increased rating claim. Further, the Veteran testified that she would be undergoing knee surgery following the January 2017 Board hearing. See Board Hearing Transcript at 15. In the April 2017 DBQ, Dr. J.K.E., M.D., noted that he performed a right knee scope in February 2017. Notably, records from Dr. J.K.E. were last received in January 2014. As this matter is being remanded, the Veteran should be afforded the opportunity to authorize VA to obtain those records or she should be allowed to submit those records herself. In addition, updated VA treatment records should also be obtained. In this regard, VA treatment records dated through March 2014 are of record. Regarding the service connection claim, the Veteran was afforded a VA examination in September 2010. The examiner opined that it was less likely as not that low back pain was caused by or a result of right knee pain. As rationale, the examiner stated that the Veteran had no complaints of low back pain in service and the first complaint of back pain appears to have been made at the time of the Veteran's first pregnancy. The Board finds this opinion inadequate. The rationale does not relate to whether low back pain was caused by or a result of the service-connected right knee disability. Rather, the rationale relates to the onset of low back pain and whether the Veteran complained of low back pain in service. Further, to the extent that the examiner is offering an opinion as to whether low back pain is related to service. The Veteran has stated that she has experienced low back pain since 1991, when she separated from service. See January 2010 Statement. The examiner merely relied on a lack of evidence in the service treatment records and that it "appeared" that the Veteran first complained of low back pain during her first pregnancy. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner relied on lack of evidence in service treatment records to provide negative opinion). For these reasons, the opinion is inadequate and a new medical opinion should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain outstanding VA treatment records, to include records dated since March 2014, if any. 2. Ask the Veteran to identify the location and name of any VA or private medical facility where the Veteran received treatment for her right knee disability and low back disability, to include the dates of any such treatment. Ask the appellant to complete authorizations for VA to obtain all records of the Veteran's treatment for her right knee disability from Dr. J.K.E. and any other sufficiently identified private treatment provider from whom records have not already been obtained. The AOJ shall attempt to obtain any relevant private treatment records for which a sufficient release is received. All efforts to obtain these records must be documented in the file. If unable to obtain any identified records, take action in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA examination to evaluate the current severity of her service-connected right knee disability. All indicated tests and studies shall be conducted. All relevant electronic records, including a copy of this remand, must be sent to the examiner for review. The examiner should report the ranges right knee flexion and extension (in degrees) on both active motion and passive motion and in both weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also specifically answer the following question with respect to right knee flexion and extension: What is the extent of any additional limitation of right knee motion (in degrees) due to weakened movement, excess fatigability, incoordination, or pain during flare-ups and/or with repeated use? The examiner should report if there is ankylosis of the right knee and, if so, the angle at which the knee is held. The examiner should also report whether there is subluxation or instability of the right knee, and if present, provide an opinion as to its severity (i.e., slight, moderate, or severe). The examiner must provide reasons for any opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions concerning the severity of her right knee disability. 3. Request an opinion as to the etiology of the Veteran's low back disability from a VA physician. The Veteran's VA claims folder should be made available to the physician for review in conjunction with the examination. The examiner should address the following: 1.) Whether it is at least as likely as not (at least a 50 percent probability) that the low back disability is etiologically related to service. In answering this question, the physician must comment on the Veteran's report of back pain since 1991. The examiner may not rely solely on the fact that service treatment records do not reveal complaints of low back pain. 2.) Is it at least as likely as not (50 percent or greater) that the low back disability was caused by the Veteran's service-connected right knee disability? 3.) Is it at least as likely as not (50 percent or greater) that the low back disability was aggravated (i.e. made worse) by the Veteran's service-connected right knee disability? The physician must provide a complete rationale for any opinion set forth. In addressing this matter the examiner should address the pertinent evidence in the service treatment records, post service medical records and examinations, as well as the lay evidence provided by the Veteran. 4. If any benefit sought on appeal remains denied, the AOJ should issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case should be returned to the Board. 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). These claims 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). _________________________________________________ Jonathan Hager 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).