Citation Nr: 1753075 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 12-20 185 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a left knee disability, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD G. Johnson, Associate Counsel INTRODUCTION The Veteran had honorable active service in the United States Marine Corps from May 1987 to December 1994. The Veteran received multiple awards and medals including the Good Conduct Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2015. A transcript of the hearing has been associated with the claims file. The case was previously before the Board in July 2015 and May 2017. In July 2015, the Board remanded the issue of service connection for a left knee disability to the Agency of Original Jurisdiction (AOJ) for additional development, including, a VA examination to determine the etiology of the Veteran's left knee disability and to obtain relevant VA treatment records and private treatment records . There has not been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In May 2017, the Board remanded the issue of service connection for a left knee disability to the AOJ for additional development, including, a medical addendum to determine the etiology of the Veteran's left knee disability. There has not been substantial compliance with the remand directives. See Stegall, supra. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran asserts that his left knee disability is related to service or to his service-connected disabilities, to include lumbar spine and left hip. At a March 2015 Board hearing, the Veteran testified that he injured his left knee in 1992 when he stepped in a ditch during a field exercise and twisted his knee. The Veteran testified that after he came out of the field he sought treatment for the injury, was diagnosed with a left knee strain, and was given medication to treat his pain. The Veteran served in the United States Marine Corps from May 1987 to December 1994. Service treatment records reflect complaints of left knee pain and left knee scars from September 1992. A February 1987 Report of Medical History for enlistment reflects that the Veteran did not report any problems with his left knee, and a February 1987 Report of Medical Examination did not reflect that the Veteran had any scars on his left knee and no left knee conditions were noted. A September 1992 Report of Medical History reflects that, the Veteran reported that he had left knee pain, and a September 1992 Report of Medical Examination reflects that, the Veteran had left knee scars. An August 1993 service treatment record reflects that the Veteran was in a motor vehicle accident, and had a contusion on his left thigh. Post-service VA treatment records reflect treatment for left knee injury from July 2008. In May 2017, the Board remanded the issue of service connection for a left knee disability. The Board noted that the Veteran was afforded a VA examination in October 2015, and the examiner did not offer a sufficient etiological opinion as to whether the Veteran's left knee disabilities were related to service-connected disabilities. The Board also noted that the Veteran was afforded a February 2017 VA examination of his left knee in conjunction with a right knee examination, but the examiner did not render an opinion regarding the etiology of the left knee disability. In a February 2017 VA examination for hip and thigh conditions, the Veteran reported that his hip pain altered his gait. In a February 2017 medical opinion for right ankle and right knee conditions, the examiner noted that the Veteran had been having falls, and that VA had given him a brace for both knees. In a March 2017 VA addendum medical opinion for right ankle and right knee conditions, an examiner noted that the Veteran had an altered gait due to hip pain. The Veteran was afforded a VA examination in June 2017. The examiner noted that the Veteran had a scar on his left knee, and that the Veteran reported that he hit his left knee on a tree prior to service. The examiner noted that there was no record of a scar on the Veteran's entrance examination. Because the Veteran allegedly suffered a left knee injury prior to military, the examiner noted that she could not state that the Veteran's current left knee strain had its clinical onset during active service or is related to any in-service disease, event or injury. It does not appear that the examiner considered the Veteran's reported left knee injury in 1992. It does not appear that the examiner considered whether the Veteran's service-connected disabilities altered the Veteran's gait. The examiner also did not provide clear rationale regarding her opinion that the Veteran's current left knee strain was not caused or aggravated by his service-connected disabilities. Therefore, the Board finds that a supplemental VA opinion is warranted to determine the etiology of the Veteran's left knee disability. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum VA opinion to ascertain the etiology of the Veteran's claimed left knee disability. The claims file should be made available to and be reviewed by the examiner. The examiner should address the following: a. whether a left knee disability clearly and unmistakably (obvious, manifest, undebatable) existed prior to the Veteran's period of active service. In making this determination, the examiner is requested to consider the Veteran's medical history, accepted medical principles, evidence regarding the basic character, origin and development of the disorder, and lay and medical evidence concerning the inception, development and manifestations of the disorder. The examiner must outline the specific evidence in the record supporting this opinion. b. If a left knee disability clearly and unmistakably existed prior to service, is there clear and unmistakable evidence that it was not aggravated by service, either because there was no increase in disability during service or because any increase in disability was due to the natural progress of the preexisting condition. c. If a left knee disability did NOT clearly and unmistakably exist prior to service, is it is at least as likely as not (50 percent or greater likelihood) that any current left knee disability manifested during, is otherwise causally or etiologically related to active duty. c. whether it is at least as likely as not (50 percent or greater likelihood) that any current left knee disability is proximately due to a service-connected disability to include lumbar spine, left ankle, left hip, right knee, right ankle, and/or left foot disabilities. d. Whether it is at least as likely as not (50 percent or greater likelihood) that any current left knee disability is aggravated (increased in severity) by a service-connected disability to include lumbar spine, left ankle, left hip, right knee, right ankle, and/or left foot disabilities. The examiner should consider and discuss the following: i. the Veteran's testimony of a left knee injury in 1992; ii. the Veteran's report of left knee pain in the September 1992 Report of Medical History; iii. the Veteran's left knee scars noted in the September 1992 Report of Medical Examination; iv. the Veteran's left thigh contusion noted in the August 1993 service treatment record; v. the Veteran's February 2017 statement that his hip pain altered his gait; vi. the February 2017 VA Medical opinion, which noted that the Veteran had been falling, and used a knee brace; vii. the March 2017 VA Medical opinion, which noted that the Veteran had an altered gait due to hip pain. In rendering the opinion, the examiner should consider the Veteran's statement that he injured his left knee in 1992 to be competent. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. If the examiner finds that an opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or by the examiner (does not have the knowledge or training). 2. Readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the Veteran and his representative should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period within which to respond thereto. 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. §§ 5109B, 7112 (2012). S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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).