Citation Nr: 1806158 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 10-31 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a left knee disability (left knee strain). 2. Entitlement to service connection for a right knee disability (right knee strain). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran had active duty in the United States Army from June 1987 to August 1987 and then service in United States Army National Guard from November 1985 to March 1988. He served on active duty in the United States Air Force from March 1988 to March 1993. Thereafter, he had service in the United States Air National Guard from March 1993 to June 2007. From December 2001 to March 2002, his unit was called to active duty. He was assigned to the Retired Reserve List in February 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In March 2013, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. In September 2016, the Board remanded the claims for service connection for a left and right knee disorder, diabetes, and peripheral neuropathy of the left and right lower extremity, for further development. Following the Board's remand, these claims were granted in an August 2016 rating decision and are no longer before the Board. The Board also notes that the record reflects that in March 2017, the Veteran perfected an appeal of an August 2016 rating decision which denied entitlement to higher ratings for a left shoulder disability. At that time, the Veteran also requested a Video Conference hearing before a member of the Board. Although this issue has been properly appealed, it has not been certified for appellate review. The record shows that the issue is awaiting the scheduling of a requested Board hearing. Consequently, the Board will not accept jurisdiction over that issue at this time. It will be the subject of a subsequent Board decision, if otherwise in order. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. In a September 2016 remand, the Board noted that the Veteran underwent a February 2015 VA knee and lower leg conditions Disability Benefits Questionnaire (DBQ) examination at which time the examiner opined that the bilateral knee disability was not related to his service. The Board noted that the VA examiner relied solely upon complaints noted in the treatment records to conclude the Veteran did not have ongoing problems with his knees after the service incidents that resulted in injuries to the knees. Thus, the expert did not consider the Veteran's evidence that he not only had an injury to each knee in service, but he continued to experience symptoms through service up until the present. The Board found that the February 2015 VA examination was inadequate. The Board requested that another VA examiner comment on the Veteran's complaint of knee pain at an October 1993, which is approximately seven months after separation from the Air Force in March 1993 and complained of knee pain in December 2002 which is approximately nine months after the Veteran and his unit returned to reserve status from active status. The examiner was also asked to discuss the clinical significance of a history of Osgood- Schaltter's disease that was asymptomatic by November 1985. Pursuant to the Board's remand, in February 2017 the Veteran underwent a VA knee and lower leg conditions DBQ examination, the examiner opined that the bilateral knee disability was not related to service based on the rationale that there was no medical documentation of any ongoing problems with his knees after his in-service knee sprains in 1989 and 1990. However, the VA examiner again failed to comment on the Veteran's complaints of knee pain or clinical significance of a history of Osgood-Schaltter's disease. Due to the deficiencies in the February 2017 medical opinion and because it remains unclear whether the Veteran's bilateral knee disability is related to his service, an additional addendum opinion is necessary. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007), Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following actions: 1. Provide the claims file to an appropriate VA examiner, other than the February 2015 and February 2017 VA examiners, who should determine whether a new VA examination is warranted in order to provide an addendum opinion regarding the nature and etiology of the Veteran's bilateral knee disabilities. The claims file, including a copy of this remand, must be made available to the examiner for review who should indicate that the claims file was reviewed. The examiner must provide the following opinion(s): Is it at least as likely as not (50 percent or more probability) that any bilateral knee disability began in service or is causally and etiologically related to service, to specifically include the Veteran's competent lay statements, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. Any opinion provided should be reconciled with the previous opinions obtained. The examiner is advised that lay evidence of continuity of symptoms, after service, if credible, is competent evidence, regardless of the lack of contemporaneous medical evidence. Nevertheless there still must be a factual showing that a symptom, for example pain, is derived from an injury, disease, or event in service. The examiner is asked to specifically discuss the Veteran's evidence by himself and others that he continued to experience pain and swelling after the injuries noted in service, which the Veteran treated himself with, for instance, ice. The VA examiner is also asked to comment on the Veteran's complaint of knee pain at an October 1993, which is approximately seven months after separation from the Air Force in March 1993 and complained of knee pain in December 2002 which is approximately nine months after the Veteran and his unit returned to reserve status from active status. The examiner is asked to discuss the clinical significance of a history of Osgood- Schaltter's disease that was asymptomatic by November 1985. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather 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 that conclusion as it is to find against it. If an opinion cannot be rendered without resorting to speculation, the physician should explain why it would be speculative to respond. 2. After completing the above, 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 claims should be readjudicated based on the entirety of the evidence. If the claims remain 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. 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). 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. §§ 5109B, 7112 (2012). _________________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (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).