Citation Nr: 18146614 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 15-01 391 DATE: October 31, 2018 ORDER Entitlement to service connection for a right knee disability is granted. REMANDED Entitlement to an increased rating for left knee disability is remanded. FINDING OF FACT The evidence of record is in equipoise as to whether the Veteran’s right knee disability is etiologically related to his left knee disability. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1987 to August 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas (Agency of Original Jurisdiction (AOJ). The Veteran testified at a June 2017 Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In May 2018, the Board requested expert medical opinion from the Veterans Health Administration (VHA). In July 2018, the Board provided the Appellant and his representative a copy of the July 2018 VHA opinion with an additional 60-day period to provide additional evidence and/or argument. Entitlement to service connection for a right knee disability The Veteran contends he has a current right knee disability that is related to his service-connected left knee femoropatellar arthrosis. Generally, service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection, there must be competent evidence of: (1) the current existence of the disability for which service connection is being claimed; (2) a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) a nexus or connection between the disease, injury, or event in service and the current disability. Shedden v. Principi, 381 F.3d 1163 (2004). Service connection may be granted, on a secondary basis, for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. In February 2011, the Veteran underwent VA examination. The VA examiner diagnosed the Veteran with right knee joint effusion and patella-femoral syndrome. In April 2011, a VA examiner opined the right knee condition is not related to the Veteran’s service-connected left knee disability; in support of this opinion, the examiner reasoned the Veteran’s right knee condition arose due to intrinsic right knee pathology – abnormal patellar tracking, a condition due to dysfunction of the patellofemoral joint including muscle imbalance. In July 2015, a VA examiner opined the Veteran’s right knee condition was not aggravated beyond its natural progression by the service-connected left knee condition; however, the examiner did not provide any supporting rationale in support of this opinion. At the June 2017 Board hearing, the Veteran testified he has solely relied on using his right knee since his left knee injury and, as a result, his right knee condition has deteriorated. He also submitted a statement from his treating private physician indicating the Veteran’s bilateral knee conditions have continued to worsen and may ultimately require total knee replacement. See Letter from Dr. C.T. dated February 1, 2018. In May 2018, the Board requested a VHA expert medical opinion addressing the etiology of the Veteran’s right knee condition. In July 2018, the VHA expert reviewed the claims file and opined it was less likely than not that the Veteran’s right knee condition was related to the service-connected left knee disability; the VHA expert cited a lack of consensus in medical literature to support that arthritis in one knee leads to subsequent arthritis in the other knee. Additionally, the VHA expert noted that systemic factors are important determinants in the etiology of osteoarthritis. Also in July 2018, a different VA examiner conducted an in-person examination of the Veteran and noted a diagnosis of right knee joint osteoarthritis. Following physical examination and review of the claims file, and in contrast to the July 2018 VHA expert opinion, the VA examiner ultimately concluded the Veteran’s knee condition was at least as likely as not secondary to the Veteran’s left femoropatellar arthrosis. The VA examiner reasoned this condition was a progressive result of the Veteran’s service-connected condition. The opinions of record concerning the etiology of the Veteran’s right knee condition are rendered by equally qualified professionals with no compelling reason to discount the basis for either opinion. In sum, based on the totality of the evidence and affording the Veteran the benefit of all reasonable doubt, the Board finds that the Veteran’s current right knee disability is causally related to his service-connected left knee disability. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). (“By requiring only an ‘approximate balance of positive and negative evidence’..., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits”). REASONS FOR REMAND 1. Entitlement to an increased rating for left knee disability is remanded. The Veteran underwent VA examination in July 2018 to evaluate the nature and severity of his left knee disability. The examiner indicated the Veteran had pain on weight-bearing, but did not provide weight-bearing range-of-motion testing or explain why such testing was not feasible. Recent court decisions have established examination standards that must be complied with before assigning an adequate disability rating. Indeed, in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held “that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities.” Id, at 8. Specifically, range of motion studies must be performed that test active and passive range of motion as well as in weight-bearing and nonweight-bearing. The Board finds that the September 2014 examination of record is inadequate in light of the holdings in Correia and Sharp v. Shulkin, 29 Vet. App. 26 (2017), so that this matter must be remanded for a new examination. The matter is REMANDED for the following action: 1. Associate with the claims folder all outstanding VA treatment records. 2. Schedule the Veteran for a VA examination to determine the severity of his service-connected left knee disability. The Veteran’s electronic claims file must be made available for review. To comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced range of motion during flares or repetitive use. Also, in order to comply with the Court’s decision in Correia, the VA examination must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-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 VA examiner should provide a complete rationale for any opinions provided. 3. Readjudicate the appeal after any necessary development is complete. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Rasool