Citation Nr: 1808339 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-24 918A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Gonzalez, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1991 to February 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision from the Department of Veterans (VA) Regional Office (RO) in Waco, Texas. The Veteran was scheduled for a Board hearing in May 2015; he failed to appear. Accordingly, appellate review will proceed without a hearing. 38 C.F.R. § 20.704(d) (2017). In June 2015 and June 2017 the Board remanded the issue on appeal for additional development. The issue has now been returned to the Board for appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board regrets the additional delay, but finds that further development is necessary prior to appellate review. Specifically, the VA medical opinions of record are not fully responsive to whether the Veteran's current right knee disabilities are related to service. The record reflects that the Veteran underwent right knee arthroscopic surgery for hypertrophied medial synovial shelf (plica) prior to service in 1987. During service the Veteran received treatment to his right knee on multiple occasions. He was diagnosed with medial collateral ligament (MCL) strain, retropatellar joint syndrome, tendonitis, and genu recurvatum. See February 1991, June 1991, and June 1992 service treatment records. A December 1993 treatment report indicates that the Veteran complained of a swollen right leg with moderate pain and right knee instability. The Veteran contends that while he had a pre-existing right knee disability, he injured that knee during service, and has had periodic problems since his separation. He was previously provided a VA examination in December 2009. The examiner diagnosed chronic right knee strain, status post arthroscopy. The medical evidence shows that the Veteran's right knee diagnoses during the appeal period have included the following: strain status post arthroscopy (December 2009 VA examination report); sprain with medial meniscus tear (September 2010 VA treatment record); right knee internal derangement, partial tear ACL, grade 2 chondrolysis medial and lateral femoral condyle (November 2010 VA surgery for bucket handle meniscus tear); and degenerative joint disease (January 2013 VA treatment record). In November 2015, the Veteran was afforded a VA examination and medical opinion regarding his right knee disability pursuant to the June 2015 remand. The November 2015 VA examiner observed that July 2015 imaging showed mild degenerative osteoarthritis. The examiner's medical opinion addressed whether the Veteran's right knee plica diagnosed before service, was aggravated by service, and whether his current diagnosis of right knee meniscal tear is related to service. Pursuant to the June 2017 Board remand the Veteran was afforded another VA examination. In October 2017 the examiner noted the Veteran's 1992 right knee strain and opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He explained that the Veteran had an injury prior to service, that his knee pain during service resolved, and that pain returned years later and became progressively worse while at his previous job. The Board finds that the medical opinions of record fail to consider all of the Veteran's current right knee diagnoses noted above. Accordingly, remand is necessary to obtain an opinion as to whether any current right knee disability is related to the Veteran's military service. Updated VA treatment records should also be associated with the claims file. 38 U.S.C. § 5103A(c) (2012). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to the claim for service connection for a right knee disability. All identified VA records should be added to the claims file, to specifically include relevant records since August 2017. All other properly identified records should also be obtained if the necessary authorization to obtain the records is provided by the Veteran. The Veteran should specifically be asked if he underwent right knee surgery in 2014. If he answers in the affirmative, records of that surgery should be obtained with his assistance. If any records are not available, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. Send the claims file to an appropriate examiner to obtain an opinion with respect to the Veteran's right knee disability. A copy of the remand directives must be provided to the examiner. If an examination is deemed necessary to respond to the question, one should be scheduled. After review of the claims file the examiner must opine whether it is as least as likely as not (at least a 50 percent probability) that any current right knee disability is etiologically related to service. An opinion as to the etiology of the Veteran's right knee meniscus tear is not sufficient, the examiner must address all of the current right knee disabilities, which include the following: strain status post arthroscopy (December 2009 VA examination report); sprain with medial meniscus tear (September 2010 VA treatment record); right knee internal derangement, partial tear ACL, grade 2 chondrolysis medial and lateral femoral condyle (November 2010 VA surgery for bucket handle meniscus tear); and degenerative joint disease (January 2013 VA treatment record). A complete rationale for all opinions must be provided. If a negative opinion is offered based primarily on the length of time between separation and the current diagnosis, the examiner should explain the medical significance of this fact, i.e., why this is indicative that any diagnosed right knee disability is not related to service. 3. After completing the requested actions, and any additional actions deemed necessary, the AOJ should readjudicate the service connection claim for a right knee disability. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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).