Citation Nr: 1807888	
Decision Date: 02/07/18    Archive Date: 02/20/18

DOCKET NO.  14-42 745	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a left knee disability, to include as secondary to service-connected status post meniscectomy right knee; and if so, whether the criteria for service connection are met

2.  Entitlement to service connection for a back disability, to include as secondary to service-connected status post meniscectomy right knee.

3.  Entitlement to service connection for a neck disability, to include as secondary to service-connected status post meniscectomy right knee.

4.  Entitlement to an increased rating for service-connected status post meniscectomy right knee, from March 30, 2012.


5.  Entitlement to service connection for an acquired psychiatric disorder, to include nervous disorder and as secondary to service-connected status post meniscectomy right knee.


ATTORNEY FOR THE BOARD

R. Gandhi, Associate Counsel


INTRODUCTION

The Veteran served honorably on active duty in the United States Army from March 1972 to March 1974.

Although the Veteran submitted a claim for a nervous condition, the Board has recharacterized the issue as a claim for an acquired psychiatric disability, generally.  The Veteran cannot be required to know whether the symptoms he is claiming service connection for are related to a nervous condition or another psychiatric disability.  See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico.  In that decision, the RO reopened but ultimately denied the claim of service connection for left knee disability.  Despite this, the Board has the responsibility of adjudicating the issue of whether new and material evidence has been submitted in the first instance.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).

The Veteran's claim for service connection for a left knee disability was denied in a May 1992 rating decision.  The RO determined that there was no evidence of a chronic left knee condition to warrant entitlement to service connected benefits.  While a notice of disagreement was received within one year of the May 1992 rating decision, the Veteran never perfected his appeal, and therefore, the May 1992 rating decision is final.  

Since that final decision, the Board finds that the Veteran has submitted new and material evidence.  Specifically, the Veteran provided an April 2012 Medical Treatment Record in which a private medical examiner stated that the Veteran has a left knee disability.  The Board finds that the newly submitted evidence reasonably raises the possibility that the Veteran has a left knee disability.  Because new and material evidence has been submitted, the Board will reopen the claim.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant the claim).  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The issues of an increased rating for a right knee condition and service connection for an acquired psychiatric condition are REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


FINDINGS OF FACT

1.  In a rating decision dated in May 1992, the RO denied the Veteran's claim for service connection for a left knee disability, to include as secondary to service-connected status post meniscectomy right knee, on the basis that there was no evidence of a chronic left knee condition to warrant entitlement to service connected benefits; the Veteran did not appeal this decision or submit new evidence within one year of the denial. 

2.  Evidence received since the May 1992 RO decision is neither cumulative nor redundant of evidence already of record and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left knee disability, to include as secondary to service-connected status post meniscectomy right knee.

3.  The Veteran's left knee disability was caused by his service-connected status post meniscectomy right knee.

4.  The Veteran's back disability was caused by his service-connected status post meniscectomy right knee.

5.  The Veteran's neck disability was caused by his service-connected status post meniscectomy right knee.


CONCLUSIONS OF LAW

1.  The May 1992 rating decision denying service connection for a left knee disability, to include as secondary to service-connected status post meniscectomy right knee is final.  38 U.S.C. § 7104; 38 C.F.R. §§ 3.104(a), 20.1103 (2017).

2.  New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection service connection for a left knee disability, to include as secondary to service-connected status post meniscectomy right knee has been submitted; the claim is reopened.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a) (2017).

3.  Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for a left knee disability secondary to the Veteran's service-connected status post meniscectomy right knee, have been met.  38 U.S.C. § § 1110, 5107 (2012); 38 C.F.R. § § 3.303, 3.310 (2017).

4.  Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for a back disability secondary to the Veteran's service-connected status post meniscectomy right knee, have been met.  38 U.S.C. § § 1110, 5107 (2012); 38 C.F.R. § § 3.303, 3.310 (2017).
5.  Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for a neck disability secondary to the Veteran's service-connected status post meniscectomy right knee, have been met.  38 U.S.C. § § 1110, 5107 (2012); 38 C.F.R. § § 3.303, 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability.  38 C.F.R. § 3.310(a).  In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen v. Brown, 8 Vet. App. 374 (1995).

I.  Left Knee Disability

With regard to a left knee disability, the Board finds that service connection is warranted.  

The Veteran has submitted evidence of a current disability, including records of diagnoses of degenerative joint disease and arthritis of the left knee.  See April 2012 Medical Treatment Record, December 2012 VA Examination, December 1994 VA Treatment Record.  Accordingly, the Board finds that the first element of secondary service connection is established.  See Wallin, 11 Vet. App. at 512.

The Veteran is service-connected for status post meniscectomy right knee.  Thus, the second element of secondary service connection is also established.  See id.

The remaining question is whether there is medical nexus evidence establishing a connection between the service-connected disability and the current disability.  On this matter, the evidence is contradictory.  
 
In May 2002 the Veteran underwent a VA examination for his left knee disability.  The examiner opined that the Veteran's left knee condition was not "secondary serviced connected" to the Veteran's service-connected right knee disability, but was instead due to aging.  The examiner provided no rationale for its conclusion.  Consequently, the Board affords the examination no probative value.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that an examination report is not entitled to any weight "if it contains only data and conclusions").

In an April 2012 opinion from the Veteran's private physician, the physician noted that it was more likely than not that the Veteran's original right-knee injury had aggravated and was the cause of his left knee disability.  The examiner reasoned that the Veteran's altered gait due his service-connected right knee disability caused issues with his left knee.

In December 2012, the Veteran underwent a VA examination for his left knee disability.  The examiner determined that although the Veteran did have a left-knee disability, the examiner summarily concluded that the left knee condition was due to the normal aging process.  As to a relation between the left- and right-knee conditions, the examiner stated only that the "medical evidence does not support[] the fact that having knee meniscal tear causes the same at the contralateral knee joint."  Because of the examiner's lack of rationale and failure to consider whether the right-knee condition may have aggravated the left knee condition, the Board affords this examination little probative value.  See id. ("It is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion.").

In light of the foregoing, the Board finds that the evidence is, at a minimum, in equipoise regarding the question of whether the Veteran's current left knee disability is related to his service-connected right knee disability.  38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303 (2017).  The benefit of the doubt will be conferred in the Veteran's favor.  The service-connection claim for a left knee disability is granted.  38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.310 (2017); see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).



II. Back Disability

With regard to a back disability, the Board also finds that service connection is warranted.

First, the Veteran has submitted evidence of a current disability, including records of diagnoses of degenerative disc disease and arthritis of the back.  See April 2012 Medical Treatment Record, December 2012 VA Examination.  Accordingly, the Board finds that the first element of secondary service connection is established. See Wallin, 11 Vet. App. at 512.

The Veteran is service-connected for status post meniscectomy right knee.  Thus, the second element of secondary service connection is also established.  See Wallin, 11 Vet. App. at 512.

The remaining question is whether there is medical nexus evidence establishing a connection between the service-connected disability and the current disability.  On this matter, the evidence is contradictory.  

In an April 2012 opinion from the Veteran's private physician, the physician noted that it was more likely than not that the Veteran's original right-knee injury had aggravated and was the cause of his back disability.  The examiner reasoned that the Veteran's altered gait due his service-connected right knee disability caused issues with his back.

In December 2012 the Veteran underwent a VA examination for his back disability.  The examiner summarily concluded that this disability was related to aging.  As to a relation between the back and right-knee conditions, the examiner stated only that the "medical evidence does not support[] the fact that having right knee status post menis[c]ectomy right knee could cause degenerative disc disease of the lumbar spine."  Because of the examiner's lack of rationale and failure to consider whether the right-knee condition may have aggravated the back condition, the Board affords this examination little probative value.  See Nieves-Rodriguez, supra.   

In light of the foregoing, the Board finds that the evidence is, at a minimum, in equipoise regarding the question of whether the Veteran's current back disability is related to his service-connected right knee disability.  38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303 (2017).  The benefit of the doubt will be conferred in the Veteran's favor.  The service-connection claim for a back disability is granted.  38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.310 (2017); see Gilbert, 1 Vet. App. at 55.

III. Neck Disability

Similarly, with regard to a neck disability, the Board finds that service connection is warranted.

The Veteran has submitted evidence of a neck disability, including records of diagnoses of degenerative disc disease and arthritis of the neck.  See April 2012 Medical Treatment Record, December 2012 VA Examination.  Accordingly, the Board finds that the first element of secondary service connection is established. See Wallin, 11 Vet. App. at 512.

The Veteran is service-connected for status post meniscectomy right knee.  Thus, the second element of secondary service connection is also established.  See Wallin, 11 Vet. App. at 512.

The remaining question is whether there is medical nexus evidence establishing a connection between the service-connected disability and the current disability.  On this matter, the evidence is contradictory.  

In an April 2012 opinion from the Veteran's private physician, the physician noted that it was more likely than not that the Veteran's original right-knee injury had aggravated and was the cause of his neck disability.  The examiner reasoned that the Veteran's altered gait due his service-connected right knee disability caused issues with his neck.

In December 2012 the Veteran underwent a VA examination for his neck disability.  The examiner determined that the Veteran's degenerative disc disease and spondylotic changes of the cervical spine was due to aging.  As to a relation between the neck and right knee condition, the examiner reasoned that "medical evidence supports the fact that knee joint and cervical spine are two different anatomical regions that are supplied by different nerves and they are different bony structures that are unrelated to each other."  Although not specifically commenting on aggravation, the examiner's opinion implies that there is no relation between the unrelated structures.  Thus, while not the model of clarity, the opinion provides sufficient rationale on which the Board may base a decision.

Thus, with regard to the neck condition, the Board finds there are two contrary, probative decisions; consequently, the evidence is, at a minimum, in equipoise regarding the question of whether the Veteran's current neck disability is related to his service-connected right knee disability.  38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303 (2017).  The benefit of the doubt will be conferred in the Veteran's favor.  The service-connection claim for a neck disability is granted.  38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.310 (2017); see Gilbert, 1 Vet. App. at 55.


ORDER

As new and material evidence sufficient to reopen the previously denied service-connection claim for a left knee disability, to include as secondary to service-connected status post meniscectomy right knee, the application to reopen is granted.

Entitlement to service connection for a left knee disability, secondary to service-connected status post meniscectomy right knee is granted.

Entitlement to service connection for a back disability, secondary to service-connected status post meniscectomy right knee is granted.

Entitlement to service connection for a neck disability, secondary to service-connected status post meniscectomy right knee is granted.


REMAND

Upon review of the record, the Board finds that the remaining issues must be remanded.  The Board sincerely regrets the additional delay caused by this remand, but wishes to assure the Veteran that it is necessary for a full and fair adjudication of these claims.

With regard to the claim for an increased rating for his right knee condition, the Veteran has alleged that he suffers from flare-ups of right knee symptoms.  The December 2012 examiner noted these complaints, but failed to provide an estimate of the functional loss during flare-ups based on information in the medical records and elicited from the Veteran.  As such, the claim must be remanded for a new VA examination that adequately addresses the Veteran's reported flares.  See Sharp v. Shulkin, 29 Vet. App. 26 (2017).

With regard to the service-connection claim for an acquired psychiatric disorder, the Board finds that a new examination and opinion is required, as the evidence of record is insufficient.  In an April 2012 opinion, the Veteran's private examiner concluded that "it is at least as likely as not that [the Veteran's] nervous problem is service connected secondary to his musculoskeletal problems."  The private examiner did not provide a diagnosis for the Veteran's nervous problems, nor did she identify the musculoskeletal problem at issue.  

In contrast, in a December 2012 opinion, a VA examiner found that the Veteran did not have any symptoms of an acquired psychiatric disorder and therefore did not have an acquired psychiatric disorder.  In so finding, the examiner did not take into account evidence of symptomatology noted in the April 2012 private treatment record (i.e., depressed mood, anxiety, irritability, and social isolation).  Due to the conflicting nature of the medical evidence described above, the Board finds that an additional examination and opinion is warranted.

Finally, remand is required as it appears that pertinent medical records are outstanding.  Specifically, the Veteran indicated he had seen a private psychologist for issues relating to his nervous condition, but those records have not been associated with the Veteran's claims file.  See December 2012 VA examination.  As all outstanding records of evaluations and treatment he received for a nervous condition during the evaluation period are pertinent, remand is required to obtain the records.  See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Assist the Veteran in associating with the claims folder updated treatment records.

Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records.  Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file.  All information obtained must be made part of the file.  All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran.

2.  After any additional records are associated with the claims file, schedule the Veteran for a VA examination to ascertain the current severity and manifestations of the Veteran's service-connected right knee disability. 

The claims file should be made available to the examiner for review in connection with the examination. 

The examiner should provide findings as to the range of motion of the right knee, including flexion and extension.  Additionally, the examiner must include range of motion testing in the following areas:

• Active motion;
• Passive motion;
• Weight-bearing; and
• Nonweight-bearing.

The examiner should indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination.  In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the right knee is used repeatedly over a period of time.  Such determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.  IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES.  EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED.

The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. 

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 examiner should also comment on the impact of the Veteran's right knee disability on his ability to work. 

The examiner must provide a complete rationale for all the findings and opinions.

3.  Schedule the Veteran for a VA examination with appropriate examiner to address the nature and etiology of his acquired psychiatric disorder.  The claims folder must be made available to the examiner for review in connection with the examinations.  The examination reports should reflect that the claims file was reviewed, including any newly associated medical records and elicit a full history from the Veteran with regard to his psychiatric condition.

(a) The examiner should opine as to whether the Veteran meets the DSM criteria for any acquired psychiatric disorder.

(b) With regard to the acquired psychiatric disorder, the examiner should state whether it is at least as likely as not (a 50 percent probability or more) that such a disability began in service, was caused by active service, or is otherwise related to active service.  

(c) The examiner should also opine as to whether it is at least as likely as not (a 50 percent probability or more) that such a disability is etiologically related to or aggravated by the Veteran's service-connected status post meniscectomy right knee or any other service-connected disability.  

The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions.

Rationale for all requested opinions shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  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 that particular question.

4.  After completing any additional notification or development deemed necessary, the Veteran's claims should be readjudicated.  If the claims remain denied, the Veteran should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response.

The Veteran has the right to submit additional evidence and argument on the 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 (2012).



_________________________________________________
A. S. CARACCIOLO
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 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).


Department of Veterans Affairs