Citation Nr: 1817062 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 11-16 795 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a right knee disorder (claimed as chronic right knee pain). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T.S.E., Counsel INTRODUCTION The Veteran served on active duty from January 1998 to July 2003. This appeal is before the Board of Veterans' Appeals (Board) from a March 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in pertinent part, denied service connection for a right knee disorder. The Veteran appealed, and in July 2017, the Board remanded the claim for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran asserts that service connection is warranted for a right knee disability. The Veteran argues that he began experiencing right knee symptoms during service, and on an ongoing basis since his service. In his appeal (VA Form 9), received in June 2011, he asserted that he had to "overcompensate" for his left knee symptoms with his right knee. He further asserted, in essence, that he had not sought additional medical treatment, despite his symptoms, because he did not want to be considered a poor soldier. The Veteran's service treatment records show that he was treated for left knee symptoms in November 1998 after he reported twisting his knee while running. He received follow-up left knee treatment in February 1999. In March 2002, he was treated for a one-week history right knee pain that began in association with a 12-mile road march. On examination, there were no noticeable deformities. He had a slight limp. His injury was weight-bearable. There was FROM (full range of motion). The assessment was RPPS (retropatellar pain syndrome). It was noted that he had poor running shoes, and that he should get new shoes. A separation examination report is not of record. As for the post-service medical evidence, private treatment records show that in June 2009, he first sought treatment for right knee symptoms (claimed as bilateral). A magnetic resonance imaging (MRI) study, dated in July 2009, shows that the impression noted a small amount of joint fluid with no fracture or intra-articular loose body, evidence of Grade II injury or partial thickness tear involving the inferior aspect of the ACL (anterior cruciate ligament), and a small amount of degenerative signal seen in the posterior horn of the medial meniscus with no medial or lateral meniscal tear identified. An October 2008 VA examination report shows that the examiner stated that the right knee examination was normal, and that the right knee showed no pathology. In August 2017, VA sought a supplemental opinion. The examiner was instructed to review the Veteran's claims file and to provide an etiological opinion. A VA opinion, dated in August 2017, shows that the examiner stated the following: The Veteran has a normal right knee. He was diagnosed with PFS (patellofemoral syndrome) in March 2002. He was seen only once and no medical records in dictate a chronic problem. It must be noted the MRI from July 2009 was of the left knee, not the right knee. He has functional complaints with a normal examination and X-rays. I reviewed the X-rays from October 2008 and he does not have joint space narrowing. The X-rays are normal. He has no current indication of PFS. He has no symptoms of this, and no physical findings of PFS. Less than 15 percent of males have this condition and he is not one of them. Lay statements do not correlate with current symptoms, physical findings, or X-rays. The over-compensating issue does not hold true. Evidence based medical has shown that one extremity joint does not affect other extremity joints or the spine. (citation omitted). The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In reviewing service-connection claims where a VA examination has been performed, the Board must make a determination as to whether the examination report is adequate to make a decision on the claim, notwithstanding the fact that the Board may not have found the examination necessary in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Id. In Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008), the U. S Court of Appeals for Veterans Claims (Court) held that most of the probative value of an opinion comes from the discussion of its underlying reasoning, so a medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two." Id. at 302. The Board finds that a remand is warranted for a supplemental opinion. Specifically, the August 2017 opinion, that the Veteran does not currently have a right knee disability, appears to be based, in part, upon the determination that the Veteran's July 2009 MRI was for his left knee, not his right knee. However, the examiner did not explain the basis for this conclusion, and the Board notes that associated treatment reports show that on July 28, 2009, the Veteran was, in fact, scheduled for a right knee MRI. See Lakeside Open MRI Center report, dated July 28, 2009. The MRI in issue is dated one day later, i.e., July 29, 2009. Accordingly, it is unclear whether the July 2009 MRI findings relate to the right or the left knee. Accordingly, the case is REMANDED for the following action: 1. Return the file to the examiner who authored the August 2017 VA opinion, or if he is not available, to another examiner. If the requested opinion cannot be provided without a physical examination, one scheduled. The examiner must be notified that service connection is currently in effect for disabilities that include lateral collateral ligament strain of the left knee. After review of the record, the examiner must provide the following opinions: a) Is it at least as likely as not (i.e., a likelihood of 50 percent or greater) that the Veteran currently has a right knee disability? Why or why not? If the Veteran is determined not to have a current right knee disability, a specific discussion should be included as to his July 2009 MRI, and whether or not this MRI actually pertains to his right knee. b) If, and only if, the Veteran is found to have a current right knee disability, the examiner should state whether: it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that the right knee disability manifested during service, or arthritis of the right knee was manifested within one year of the Veteran's discharge from active service (e.g., between July 2003 and July 2004), or whether arthritis of the right knee is otherwise related to his service? Why or why not? c) If the examiner determines that the Veteran currently has a right knee disability that it was not caused by his service, the examiner should state whether or not his right knee disability was caused by his service-connected left knee disability. Why or why not? d) If the examiner determines that the Veteran currently has a right knee disability that it was not caused by his service, the examiner should state whether or not his right knee disability was aggravated (made worse) by his service-connected left knee disability. Why or why not? If aggravation is found, the examiner should identify the baseline level of severity of the nonservice-connected disease or injury by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 3. Then readjudicate the appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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 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. _________________________________________________ MATTHEW W. BLACKWELDER 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).