Citation Nr: 18154317 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-62 997 DATE: November 29, 2018 REMANDED Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability is remanded. Entitlement to an initial evaluation in excess of 10 percent for service-connected chondromalacia of the right knee is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 2013 to January 2014. In a July 2014 rating decision, the Department of Veterans’ Affairs (VA) Regional Office (RO) in Montgomery, Alabama, among other actions, established service connection for chondromalacia or the right knee; a noncompensable (zero percent) initial evaluation was assigned, effective from January 28, 2014. Within the appeal period of this rating decision, the Veteran submitted pertinent new and material evidence pertaining to the severity of his service-connected right knee disability and a new claim to establish service connection for a left knee disability. In an April 2015 rating decision, the RO in Providence, Rhode Island, denied the Veteran’s claim to establish service connection for a left knee disability and increased the evaluation assigned for the Veteran’s service-connected right knee disability from zero percent to 10 percent, effective from January 28, 2014 – the date of service connection for this disability. The Veteran expressed disagreement with the assigned initial evaluation for his service-connected right knee disability and the denial of his claim to establish service connection for a left knee disability, and the present appeal ensued. Since the appeal was initiated, jurisdiction was transferred to the RO in Montgomery, Alabama, from where it was certified to, and received by, the Board of Veterans’ Appeals (the Board). As a point of clarification, the later rating decision subsumed the earlier one regarding the initial evaluation and effective date assigned for the Veteran’s service-connected right knee disability because of the Veteran’s submission of new and material evidence pertinent to this issue within the appellate period of the earlier rating decision. 38 C.F.R. § 3.156(b) (2017). As such, this issue has been characterized as one pursuing an increased initial evaluation. 1. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability is remanded. The Veteran asserts that he initially injured his left knee during active duty and has experienced pain in the joint since that time. The Veteran’s service treatment records are replete with instances of complaints of, and treatment for, knee pain throughout his year of active duty, and the Board notes that several of these records do not distinguish which of the Veteran’s knees are subject to the reports of pain and functional impairment. Further, the Veteran has submitted post-service private treatment records noting a diagnosis of chondromalacia of the left knee and reports of pain which initially manifested during his period of active duty. Despite the above evidence, the April 2015 VA examiner ruled out a diagnosis of a left knee disability, although the Veteran’s private treatment reports noting complaints of consistent pain and a current diagnosis were not addressed. Interestingly, the examiner ruled out a diagnosis pertaining to the left knee and confirmed a diagnosis of chondromalacia of the right knee based on April 2015 x-ray testing which found both knees to be “unremarkable.” Further, the nexus opinion offered by the April 2015 VA examiner did not address the theory of direct service connection, as was asserted by the Veteran in his August 2015 Notice of Disagreement. In light of above, the Board concludes that the April 2015 VA examination is inadequate concerning the nature and etiology of the Veteran’s claimed left knee disability, and thus, a remand is necessary. 2. Entitlement to an initial evaluation in excess of 10 percent for service-connected chondromalacia of the right knee is remanded. Initially, the Board notes that the Veteran was most recently provided a VA examination to determine the frequency and severity of his right knee symptoms more than three years ago. Further, while the Veteran reported experiencing flare-ups of right knee symptoms resulting in pain and increased functional impairment at the April 2015 VA examination, this impairment is not quantified as necessary per recent changes in the law. Sharp v. Shulkin, 29 Vet. App 26, 34 (2017). In light of above, the Board concludes that the April 2015 VA examination is inadequate for the purpose of readjudicating this issue, and thus, a remand is necessary. Lastly, to ensure that the VA examiner is fully apprised of the Veteran’s complete medical picture, updated VA and private treatment records must be sought, obtained, and associated with the record. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA treatment from the VAMC in Montgomery, Alabama, and all associated facilities, dated after September 13, 2016. 2. The AOJ must request that the Veteran identify the names, addresses, and approximate dates of treatment for all of the non-VA health care providers who have treated him for his knee disabilities since his separation from active duty in January 2014. After securing appropriate release(s) from the Veteran, the AOJ must make two attempts to obtain any identified private treatment records which are not already associated with the file or make a formal finding that a second request for such records would be futile. The Veteran must be notified of the results of the record requests. If records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159(e). 3. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to evaluate his service-connected right knee disability and determine the nature and etiology of his claimed left knee disability. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary studies and tests should be conducted. The examiner must describe the frequency and severity of all manifestations of the Veteran’s service-connected right knee disability. *To the degree possible, it would be helpful to schedule the Veteran for a VA examination during a flare-up of his service-connected right knee disability. *In addition to the information requested by the standard DBQ relating to disabilities of the knee, the examiner must specifically address the following: - Provide findings for limitation of motion (expressed in degrees) for flexion and extension of the Veteran’s right knee, to include in passive motion, in weight-bearing and nonweight-bearing, and during a flare-up of symptoms, currently and retrospectively. In doing so, please review the prior VA examination report (April 2015), and based on the information therein, provide the requested findings (limitation of flexion and extension of the right knee) retrospectively. In addition, the examiner must address the following: a. Confirm or rule out a left knee disability during the appeal period (since January 2014). *If no left knee disability is confirmed, please reconcile this finding with the October 2014 private treatment record from Dr. Elliott noting a diagnosis of chondromalacia of both knees. b. For any disability identified in part (a), provide an opinion concerning whether such is at least as likely as not proximately due to or the result of any incident of the Veteran’s service. c. For any disability identified in part (a), provide an opinion concerning whether such is at least as likely as not caused by the Veteran’s service-connected right knee disability. d. For any disability identified in part (a), provide an opinion concerning whether such is at least as likely as not aggravated by the Veteran’s service-connected right knee disability. e. If no left knee disability is identified during the appeal period (since January 2014), the examiner is requested to describe the functional impairment resulting from the Veteran's left knee pain. In doing so, the examiner is requested, to the extent possible, to describe any and all functional impairment stemming from the Veteran's left knee pain on his ability to stand, walk, run, maintain balance. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. Thereafter, the AOJ must readjudicate the issues remaining on appeal. If any benefit is not granted to the fullest extent, the Veteran and his representative must be furnished with an SSOC and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott W. Dale, Counsel