Citation Nr: 20006463 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 16-45 303 DATE: January 28, 2020 REMANDED Entitlement to a rating greater than 10 percent for right knee degenerative joint disease formerly classified as patellofemoral chondromalacia is remanded. Entitlement to service connection for a respiratory disorder to include chronic obstructive pulmonary disease is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1969 to January 1974. In September 2019, a videoconference hearing was held before the undersigned Veterans Law Judge. At that time, the record was held open for 60 days. Additional evidence was timely received with a waiver of Regional Office (RO) jurisdiction. In October 2019, the Veteran submitted a private medical statement relating heart disease and diabetes to military service. Under 38 C.F.R. § 3.1(p), a “claim” must be submitted on an application form prescribed by the Secretary. See 79 Fed. Reg. 57,696 (Sept. 25, 2014) (eliminating informal claims by requiring that, effective March 24, 2015, claims be filed on standard forms). Accordingly, the appellant is advised that if he wishes to file a claim for service connection for heart disease and/or diabetes, he must do so on the prescribed form. Entitlement to a rating greater than 10 percent for right knee degenerative joint disease formerly patellofemoral chondromalacia In May 2013, VA continued a 10 percent rating (based on limitation of motion) for right knee patellofemoral chondromalacia. The Veteran disagreed with the rating. In the September 2016 statement of the case, VA recharacterized the service-connected condition as “degenerative joint disease, right knee formerly diagnosed as chondromalacia patella”. The Veteran subsequently perfected this appeal. The Board notes that the May 2013 VA examiner indicated that the degenerative changes were consistent with the Veteran’s obesity, and because degenerative joint disease was present bilaterally it was not related to the service-connected right knee injury. Notwithstanding, the Board will not disturb the favorable determination. 38 C.F.R. § 3.102. At the September 2019 hearing, the Veteran testified that his knee has worsened and that his physician says he needs a total knee replacement. As such, he contends that the 10 percent rating does not adequately reflect the severity of his disability. In support of his claim, the Veteran submitted a disability benefits questionnaire completed by a private provider in October 2019. On review of that document the findings continue to support a 10 percent rating based on limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. The report also, however, indicates a meniscal condition with frequent episodes of effusion and pain, as well as medial instability. The Board observes that separate ratings are theoretically available based on these findings, but the physician did not indicate whether they were related to service or service-connected disability. In this regard it is notable that the Veteran’s service treatment records include a diagnosis of torn right medial meniscus in April 1971. That diagnosis, however, was not confirmed. In June 1971, the Veteran underwent an arthrotomy which revealed two normal menisci, intact cruciate and collateral ligaments, and normal articular cartilage save for an area the size of a dime of chondromalacia grade I of the patella.   A VA examination is needed to address these questions. 38 C.F.R. § 3.327. Entitlement to service connection for a respiratory disorder claimed as chronic obstructive pulmonary disease In December 2012, VA denied entitlement to service connection for chronic obstructive pulmonary disease. The Veteran disagreed with the decision and perfected this appeal. The Veteran contends that he has a respiratory disorder related to active service. Specifically, he reports that he was a firefighter and was exposed to asbestos, various fuels, and smoke. He believes these exposures caused or contributed to his development of chronic obstructive pulmonary disease. The Veteran’s service personnel records confirm that he served as a firefighter during his service and his reports of exposures to smoke, fumes, etc. appear consistent with his military duties. Service treatment records are, however, negative for any complaints or findings of a chronic respiratory disorder. The Veteran underwent a VA examination in September 2012. He reported serving as a firefighter on active duty. He continued this profession after discharge until about 1979. Thereafter he was a fire inspector and then a truck driver until retirement in 2005. He smoked one to one and a half packs of cigarettes daily for 5-10 years, but then reportedly quit 25 years ago. Objectively, the chest x-ray showed chronic obstructive pulmonary disease. The examiner opined that the claimed condition was less likely than not incurred in or caused by service. In support, the examiner acknowledged the Veteran was a fire fighter but noted there was no evidence in the service records of treatment for smoke inhalation. She further stated that the chronic obstructive pulmonary disease was most likely caused by cigarette smoking. As a matter of law VA cannot grant compensation based on a disease caused by inservice smoking. 38 U.S.C. § 1103.   On review, the September 2012 opinion is inadequate. That is, the examiner based her opinion at least in part on the absence of documented treatment for smoke inhalation during service. The Veteran has reported extensive exposure to smoke in the course of his military service and he is competent to report this information. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a lay person is competent to report on that of which he or she has personal knowledge). Further, while the examiner related the chronic obstructive pulmonary disease to smoking, she did not explain why that was the more likely etiology. In October 2019, the Veteran submitted a nexus statement from his private physician which indicates that chronic obstructive pulmonary disease was most likely caused by or a result of service. The physician, however, provided no rationale and the nexus statement is not considered probative. The Veteran is advised that the probative value of a medical opinion involves consideration whether the opinion is supported by a reasoned analysis. That is, the most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only a bare conclusion is not entitled to any weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Nonetheless, considering the inadequate VA opinion, an addendum opinion is warranted. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (Once VA undertakes to provide a VA examination, it must ensure that the examination is adequate). As to both issues remanded, updated VA records should be obtained. 38 C.F.R. § 3.159(c)(2). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from September 2016 to the present. If the AOJ cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disorder. The Veteran’s VBMS and Virtual VA/Legacy folders must be available for review. The examiner is to provide an opinion addressing whether it is at least as likely as not that any meniscal condition and/or instability, is related to the complaints and findings during active service. If not the examiner must address whether it is at least as likely as not that any meniscal condition and/or instability is proximately due to or aggravated by right knee degenerative joint disease (formerly patellofemoral chondromalacia). The examiner must provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Return the September 2012 respiratory examination for an addendum opinion. If the September 2012 examiner is not available, the requested information should be obtained from a similarly qualified clinician. The Veteran’s VBMS and Virtual VA/Legacy folders must be available for review. The reviewing clinician is to opine whether chronic obstructive pulmonary disease is at least as likely as not related to the appellant’s active service or events therein. For purposes of this opinion, the examiner should accept as fact that the Veteran was exposed to hazardous materials, to include jet fumes and smoke, in the course of his military duties as a firefighter. The reviewing clinician should also discuss the Veteran’s smoking history. If the appellant’s history of smoking is determined to be the more likely etiology, the examiner must explain why. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Carsten, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.