Citation Nr: 1804256 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-09 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for bipartite patella of the left knee. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD C. J. Cho, Associate Counsel INTRODUCTION The Veteran served on active duty from October 6, 1969 to October 5, 1971, from May 1, 1982 to May 15, 1982, from August 2, 1985 to November 3, 1985, from May 13, 1990 to June 12, 1990, and May 1, 1992 to May 9, 1992. The Veteran also has additional reserve duty service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The matter was subsequently transferred to the RO in San Diego, California. The Board notes that this case was remanded previously in January 2016 and September 2016. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND After the Board remanded the claim for a second time in September 2016, the Veteran was afforded a new VA examination, and an addendum VA opinion was rendered in November 2016. Here, upon review of the November 2016 VA opinion, however, the Board finds the November 2016 opinion inadequate for purposes of adjudicating the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, although further delay is regrettable, the Board finds that remand is warranted to obtain a new addendum VA opinion. The November 2016 VA opinion, which found that the Veteran's congenital bipartite patella is less likely than not proximately due to or the result of the Veteran's service connected condition, cannot be used by the Board to make an informed decision because this opinion is nonresponsive to the Board's September 2016 remand directive question, and furthermore, the examiner's stated rationale for the opinion is inadequate. In September 2016, the Board remanded the claim for an addendum VA opinion, and specifically directed that the examiner provide: 1) an opinion as to whether it is as least as likely as not (50 percent or greater probability) that the Veteran's congenital defect incurred a superimposed disease or injury that resulted in any other condition of the left knee, and 2) a complete rationale for any opinions given. See September 2016 Board remand. Here, however, instead of answering whether it is as least as likely as not (50 percent or greater probability) that the Veteran's congenital defect incurred a superimposed disease or injury that resulted in any other condition of the left knee, the November 2016 VA examiner opined that the Veteran's congenital bipartite patella "is less likely than not (less than 50% probability) proximately due to or the result of the Veteran's service connected condition." See Stegall v. West, 11 Vet. App. 268, 271 (1998). This answer is not responsive to the Board's question; therefore, the Board is still without an opinion necessary to adjudicate this claim. Moreover, while it appears from the November 2016 VA examiner's stated rationale that he relied upon "medical literature" to render the opinion, the examiner did not provide citations to any such medical literature in the opinion. Instead, in the rationale section of the opinion, the examiner merely stated: Veteran's congenital bi partite patella is not a risk factor for meniscal tear, osteoarthritis or any other acute or chronic knee pathology. This is based on my review of the relevant medical literature and my expert opinion as a board certified orthopedic surgeon. November 2016 VA opinion (emphasis added). Without knowing which medical literature he relied upon for this opinion, the Board cannot assess the opinion or make an informed determination using this opinion as to whether or not service connection for the Veteran's bipartite patella is warranted. See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). Based on the above, a new addendum opinion must be obtained addressing these foregoing concerns. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to the examiner who completed the November 2016 bipartite patella addendum opinion so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. A new examination is only required if deemed necessary by the examiner. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a. If a new examination is warranted, the examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. The examiner must provide the following opinion: i. WHETHER IT IS AT LEAST AS LIKELY AS NOT (50 PERCENT OR GREATER PROBABILITY) THAT THE VETERAN'S CONGENITAL DEFECT INCURRED A SUPERIMPOSED DISEASE OR INJURY THAT RESULTED IN ANY OTHER CONDITION OF THE LEFT KNEE. After answering the question, a clear rationale for each of the opinions given is needed. A discussion of the facts and medical principles involved and the Veteran's lay assertions should be considered in giving this opinion, with page references to the evidence used in the decision. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) Any opinion expressed by the VA examiner should be accompanied by a complete rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Furthermore, IF MEDICAL LITERATURE IS RELIED UPON IN RENDERING THIS DETERMINATION, THE VA EXAMINER SHOULD IDENTIFY AND SPECIFICALLY CITE EACH REFERENCE MATERIAL UTILIZED. c. Although an independent review of the claims file is required, the Board calls the examiner's attention to the following: i. The Veteran's service treatment records, including a left knee contusion noted in a September 1970 treatment record; and ii. The Veteran's lay statements, including the December 2003 lay statement identifying a December 1969 injury and 1980 injury. d. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 2. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. 3. After undertaking any necessary additional development, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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 (West 2012). _________________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), 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).