Citation Nr: 18156103 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 12-30 945 DATE: December 11, 2018 REMANDED Entitlement to service connection for a left leg disorder (previously claimed as left leg shortening), to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected left knee disorder, is remanded. Entitlement to a rating more than 20 percent for left knee ligament laxity is remanded. Entitlement to a rating more than 10 percent for limitation of flexion due to traumatic arthritis, left knee is remanded. Entitlement to a compensable rating for residuals of left ankle talus fracture is remanded. REASONS FOR REMAND The Veteran had active duty service from January 1963 to November 1966. The Board notes that the Veteran initially requested a Board hearing to be held at his local Regional Office (RO). However, correspondence from the Veteran in December 2014 and November 2018 confirms that he has withdrawn his hearing request and the appeal is properly before the Board at this time. With regard to the issue of service connection for a right knee disorder, the Veteran filed a timely substantive appeal in October 2012 in response to the August 2012 Statement of the Case (SOC). This issue was not certified to the Board, but by treating a claim as if it is part of a timely filed substantive appeal, VA effectively waives all objections to the procedural adequacy of the appeal with respect to that issue. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009). 1. Entitlement to service connection for a left leg disorder (previously claimed as left leg shortening), to include as secondary to a service-connected disability In an October 2009 VA Form 21-4138, the Veteran requested service connection for a left leg disorder. He explained that his left leg is shorter than his right leg and that has caused him problems. In an October 2010 rating decision, service connection for a left hip condition, claimed as a left leg condition, was denied. In November 2010, the Veteran submitted a timely notice of disagreement with this issue and asserted this disorder is directly related to his active service and/or secondary to a service-connected condition. Review of the record does not show the Agency of Original Jurisdiction (AOJ) has issued a SOC for this particular issue. As such, this issue is remanded for issuance of a SOC as of this date. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). 2. Entitlement to service connection for a right knee disorder, to include as secondary to a service-connected left knee disorder An April 2010 VA examination report reveals that the Veteran stated that he was involved in a motorcycle crash in 1970, approximately 4 years after discharge from service, and was diagnosed with bilateral arthrosis of the knees. A July 2010 VA medical opinion revealed that treatment for the motorcycle crash in 1970 required right knee surgery, and the examiner concluded that it is not likely that the Veteran’s right knee disorder is secondary to his service-connected left knee disorder. The examiner explained that the Veteran’s left leg is shorter than his right leg and that knee strains are not known for causing shortening of the legs. Service connection may be established on a secondary basis for a disorder which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2018). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); see also 38 C.F.R. § 3.310(b). Given the limited rationale provided by the July 2010 VA examiner, the Board finds it to be inadequate for rating purposes because it does not properly consider the theory of secondary service connection. Moreover, review of VA treatment records shows a diagnosis of bilateral knee osteoarthritis and an opinion as to service connection on a direct basis, to include on a presumptive basis as a chronic disease, has not been provided. See 38 C.F.R. §§ 3.303, 3.309(a) (2018). Therefore, additional VA medical opinions are needed to properly adjudicate this issue on appeal. 3. Entitlement to a rating more than 20 percent for left knee ligament laxity 4. Entitlement to a rating more than 10 percent for limitation of flexion due to traumatic arthritis, left knee The Board notes that the Veteran’s most recent and pertinent VA knee examination took place in April 2016. The Veteran was diagnosed with left knee instability and left knee traumatic arthritis. Upon examination, left knee flexion was to 115 degrees and extension was to 0 degrees. There was no objective evidence of pain during range of motion testing, but there was evidence of crepitus. Pain and weakness were noted to significantly limit functional ability with repeated use over a period of time. The examiner noted that the Veteran uses assistive devices such as a cane and knee brace for instability. Review of subsequent VA treatment reports suggests that these service-connected left knee disorders have worsened since the most recent and pertinent VA examination in April 2016. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Further, the United States Court of Appeals for Veterans Claims (Court) has recently held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). The April 2016 VA examination report does not include any section for recording ranges of motion on active or passive testing. While the examination report does include a question about weight-bearing, the question only asks about pain, not range of motion. Therefore, the April 2016 VA examination is inadequate under the Court’s holding in Correia. Considering the above, the Board finds that a new VA examination is necessary to ascertain the current severity of the Veteran’s service-connected left knee ligament laxity and limitation of flexion due to traumatic arthritis. 5. Entitlement to a compensable rating for residuals of left ankle talus fracture The Veteran’s most recent and pertinent VA ankle examination was conducted in April 2016. Upon examination, left ankle dorsiflexion was 0 to 20 degrees and plantar flexion was 0 to 30 degrees. No pain or tenderness was noted. Again, review of subsequent VA treatment records indicates that his left ankle disorder has worsened since the April 2016 VA examination. Also, the examination is inconsistent with the holding in Correia described above. As such, the Board finds that an additional VA examination is necessary to ascertain the current severity of the Veteran’s service-connected residuals of left ankle talus fracture. Additionally, a review of the record reveals that the Veteran has received some VA and private treatment for his claimed disorders. The Board finds that it would be prudent for an attempt to obtain any outstanding treatment records be made. The matters are REMANDED for the following actions: 1. Contact the Veteran and request that he identify any private treatment facilities or providers relevant to his reported treatment for any of the claimed disorders on appeal, and provide him with the appropriate release forms. Then, make appropriate efforts to obtain any outstanding records so authorized for release from any facility identified by the Veteran. Also, obtain and associate with the claims file all outstanding VA treatment records dated since September 2017. If these records cannot be located, the RO must specifically document the attempts made to locate them and notify the Veteran and his representative. 2. Then, issue a SOC addressing the issue of entitlement to service connection for a left leg disorder (previously claimed as left leg shortening), to include as secondary to a service-connected disability. A timely perfected appeal must be filed to vest the Board with appellate jurisdiction over the claim. 3. Return the Veteran’s claims file to the examiner who conducted the April 2010 VA examination and provided the July 2010 VA medical 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. 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 new examination is only required if deemed necessary by the examiner. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: During the appeal period, the Veteran has been diagnosed with bilateral arthrosis of the knees (April 2010 VA examination report) and bilateral knee osteoarthritis (April 2013 VA treatment record) The examiner must opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right knee disorder (even if resolved since October 2009) (i) began during active service, (ii) is related to an incident of service, or (iii) symptoms of arthritis began within one year after discharge from active service. (b.) Whether it is at least as likely as not that the Veteran’s right knee disorder was proximately due to or the result of a service-connected left knee disorder. (c.) Whether it is at least as likely as not that the Veteran’s right knee disorder was aggravated beyond its natural progression by a service-connected left knee disorder. 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 this and provide a rationale for such conclusion. 4. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his service-connected left knee ligament laxity and service-connected limitation of flexion due to traumatic arthritis. 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. The examiner must provide all findings, along with a complete rationale for any opinions provided. 5. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his service-connected residuals of left ankle talus fracture. 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. The examiner must provide all findings, along with a complete rationale for any opinions provided. 6. Then, review the examination reports and medical opinions to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the RO must implement corrective procedures. 7. Then, readjudicate the claims of entitlement to service connection for a right knee disorder and higher ratings for service-connected right knee, left knee, and left ankle disorders. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Miller, Associate Counsel