Citation Nr: 1800411 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 04-20 367A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a pterygium excision performed at the Long Beach VA Medical Center (VAMC) in November 1985. 2. Entitlement to an initial rating in excess of 10 percent for service-connected right knee disability. 3. Entitlement to an initial rating in excess of 10 percent for service-connected left knee disability. (The issues of entitlement to higher initial ratings for right and left hip disabilities have been addressed in a separate decision.) REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and Mr. A.J. ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from October 1975 to October 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated June 2003, November 2004, and August 2006 of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In September 2011, the Veteran presented sworn testimony during a personal hearing in Oakland, which was chaired by the undersigned. A transcript of the hearing has been associated with the Veteran's VA claims file. In an April 2012 Board decision, the claims were remanded for further evidentiary development. The VA Appeals Management Center (AMC) most recently continued the previous denials in a January 2016 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on his part is required. REMAND Regrettably, a remand is necessary for further evidentiary development of the Veteran's claims on appeal. The Board is cognizant that the Veteran's case has been in adjudicative status for years and that it has already been remanded in the past. Consequently, the Board wishes to assure the Veteran that it would not be remanding this case again unless it was essential for a full and fair adjudication of his pending claims. The Veteran asserts that he is entitled to compensation under 38 U.S.C. § 1151 for a right eye disability. Specifically, he contends that he suffers from residuals of a pterygium excision performed on his right eye in November 1985 at the Long Beach VAMC. See, e.g., the Board hearing transcript dated September 2011. VA treatment records dated in January 2003 indicate that the Veteran has continuing diagnoses of compound myopic astigmatism presbyopia, and pterygium of the right eye. See also the VA treatment records dated in April 2006. The Veteran has not been afforded a VA opinion in this matter. The Board cannot determine whether he currently has an additional right eye disability that was due to the November 1985 excision of pterygium performed at the Long Beach VAMC, and if so, whether there was medical carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in providing the surgery and treatment or whether the consequences of the treatment were not reasonably foreseeable. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.361 (2017). The Board finds that a comprehensive review of the record should be conducted by a medical practitioner with regard to the Veteran's contentions. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2017) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim); Colvin v. Derwinski, 1 Vet. App. 191, 195 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). As to the issues of entitlement to increased initial ratings for right and left knee disabilities, the Veteran was last afforded a VA examination in June 2012. In addition to osteoarthritis of the bilateral knees, the June 2012 VA examiner reported that the Veteran had meniscal conditions in both knees with frequent episodes of joint pain. This finding, however, is inconsistent with the evidence of record, which shows that the Veteran was diagnosed with a medial meniscus tear in the left knee only. See, e.g., the VA treatment records dated March 2005, May 2008, and April 2011. In addition, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Correia v. McDonald, 28 Vet. App. 158 (2016), in which the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA musculoskeletal examinations include joint testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing (and, if possible, with range of motion measurements of the opposite undamaged joint). Further, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court recently held that in addressing the nature of any flare-ups examiners must address the frequency, duration, characteristics, severity, and functional loss due to the flare-up. In light of the foregoing and the fact that the June 2012 examination report does not fully satisfy the requirements of Correia, Sharp and 38 C.F.R. § 4.59, the Veteran should be afforded a new VA examination before a decision can be rendered on his increased rating claims. Prior to arranging for the Veteran to undergo further VA examination, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain all pertinent, outstanding records. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding records of VA evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. The AOJ shall refer the VA claims file to a physician with appropriate expertise to address the Veteran's claim of entitlement to compensation under 38 U.S.C. § 1151 for residuals of a November 1985 pterygium excision. The physician is requested to review the claims file in its entirety including all VA and private treatment records. Then, the physician should respond to the following: (a). Is it at least as likely as likely as not (50 percent probability or greater) that the Veteran incurred additional disability as a result of the November 1985 pterygium excision performed at the Long Beach VAMC? (b). If additional disability exists, is it at least as likely as not (50 percent or greater) that the proximate cause of such additional disability was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA? In determining whether the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, please discuss if VA failed to exercise the degree of care that would be expected of a reasonable health care provider. (c). If additional disability exists, is it at least as likely as not (50 percent or greater) that such disability was due to an event not reasonably foreseeable? In determining whether an event is not reasonably foreseeable, the standard is what a "reasonable health care provider" would have considered to be an ordinary risk of treatment that would be disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32, which requires the primary health care provider to explain the reasonably foreseeable risks associated with the surgery or treatment being provided. The physician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the physician rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. Should the physician decide that a physical examination of the Veteran is required to address these questions, one should be scheduled. If the physician is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The physician must provide a rationale for each opinion given. 3. The Veteran should also be afforded a VA examination in order to determine the extent of his service-connected right and left knee disabilities. The examination should be conducted in accordance with the current disability benefits questionnaire, to include testing for pain on both active and passive motion, and in weight bearing and nonweight-bearing, consistent with 38 C.F.R. § 4.59 as interpreted in Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner must also address at what point in the arc of motion pain limits function both regularly and during flare-ups, even if a flare-up is not observed on that day. In addressing the nature of any disability during a flare-up the examiner must address the severity of the flare-up, the frequency and duration of the flare-up, and all precipitating and alleviating factors. In addition, the examiner should address the impact of the right and left knee disabilities upon the Veteran's industrial activities including his ability to obtain and maintain substantially gainful employment. 4. Thereafter, readjudicate the claims on appeal. If a benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is 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 remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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).