Citation Nr: 20060653 Decision Date: 09/15/20 Archive Date: 09/15/20 DOCKET NO. 16-35 448 DATE: September 15, 2020 REMANDED Service connection for status post left knee meniscal tear repair, claimed as secondary to the service-connected left knee patellar tendonitis is remanded. Service connection for left knee traumatic arthritis, claimed as secondary to the service-connected left knee patellar tendonitis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1992 to October 1999. This matter is before the Board of Veterans’ Appeals (the Board) on appeal from a September 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision confirmed and continued a 10 percent disability rating for the service-connected left patellar tendonitis, denied service connection for left meniscus tear (now claimed as temporary 100 percent for surgery and secondary to left patellar tendonitis), and denied service connection for left knee traumatic arthritis (claimed secondary to left patellar tendonitis). In May 2014, the Veteran’s Notice of Disagreement (NOD) was received. The NOD stated that the Veteran wished to appeal entitlement to service connection for meniscal tear (now claimed as temporary 100 percent for surgery and secondary to the service-connected disability of left patellar tendonitis) and service connection for traumatic arthritis (claimed secondary to left patellar tendonitis). The Veteran stated that he disagrees with the denials of service connection based on the contents of his VA treatment records. Notably, the Veteran did not disagree with the RO’s decision to continue and confirm the 10 percent disability evaluation for his service-connected left knee patellar tendonitis. In May 2016, the RO issued the Statement of the Case, and pursuant to the May 2014 NOD, only addressed the issues of entitlement to service connection for meniscal tear and for arthritis. In July 2016, the Veteran’s VA Form 9, substantive appeal to the Board was received. In it, the Veteran checked the box indicating that he wished to appeal all of the issues listed on the SOC. However, in the narrative section, the Veteran wrote that he was out of work for more than 30 days because of his patellar tendonitis. He also stated that he was trying to increase his disability evaluation due to his patellar tendonitis being worse. In February 2019, the Veteran, his wife, and his representative appeared before the undersigned Veterans Law Judge (VLJ) for a Board videoconference. The transcript is of record. It is clear from the transcript, that the undersigned inadvertently included the issue of entitlement to an increased rating for left knee patellar tendonitis, to include whether a temporary total rating is warranted for hospitalization or convalescence following surgery, as an issue in appellate status before the Board. However, for the reasons indicated below, the Board currently does not have jurisdiction over that issue, and the issues currently before the Board are entitlement to service connection for traumatic arthritis, which may or may not be a meniscal tear, secondary to the service-connected left knee patella tendonitis; and, entitlement to service connection for status post left knee meniscal tear reapir. See p. 2, transcript. The two issues that are currently in appellate status are entitlement to service connection for status post left knee meniscal tear repair and entitlement to service connection for left knee traumatic arthritis. The May 2014 NOD clearly and unequivocally states that the Veteran only wishes to appeal those two issues. The May 2016 Statement of the Case fully addressed the issues on appeal as listed in the May 2014 NOD. Of note, the Veteran asserted in his July 2016 VA Form 9 that he is entitled to an increased rating for the service-connected left patellar tendonitis. However, this correspondence cannot be accepted as a valid substantive appeal to Board absent a timely NOD. The July 2016 VA Form 9 also cannot be accepted as a valid NOD because VA regulations require NODs to be submitted on a correct form with each issue listed that the Veteran wishes to appeal. The NOD has to be submitted within one year of the notice of the rating decision on appeal. In this case, even if the Veteran was not required to use the correct form to submit his NOD, his July 2016 VA Form 9 request to appeal the denial of an increased rating was submitted more than one year after the September 2013 notice of the rating decision on appeal. Thus, it cannot be accepted as timely. Although the Veteran was inadvertently afforded the opportunity to present his contentions with regard to his increased rating claim, to include entitlement to a temporary 100 percent rating following surgery, that issue was never in appellate status. As such, the Board does not currently have jurisdiction to review it. During the February 2019 hearing, the issue of entitlement to a temporary 100 percent rating was addressed. Specifically, the Veteran underwent a surgery in 2012 to repair a torn meniscus in his left knee. He has alleged that this is related to his service-connected left patellar tendonitis. While the entitlement to the temporary total rating may ultimately be related to his left patellar tendonitis, the record is clear (and the Veteran has not contended otherwise) that the 2012 surgery was to repair his left knee meniscal tear. The claim of service connection for status post left knee meniscal tear repair is currently in appellate status. As such, the issue of entitlement to a temporary total disability rating for convalescence following meniscal tear surgery is inextricably intertwined with the underlying service connection issue. 1. Entitlement to service connection for status post left knee meniscal tear repair, to include secondary to the service-connected left knee patellar tendonitis. 2. Entitlement to service connection for left knee traumatic arthritis, to include secondary to the service-connected left knee patellar tendonitis. The Veteran seeks service connection for left knee meniscal tear and left knee traumatic arthritis. He contends that both of these disabilities result from his service-connected left knee patellar tendonitis. The Veteran submitted a May 2013 private physician’s statement that listed left knee meniscal tear and patellar tendonitis under diagnosis and stated that the Veteran has not been released for work. However, the statement does not specifically indicate that the two the disabilities are related and does not provide a rationale for the conclusion. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25 (a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (a medical report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). In May 2015, the Veteran underwent a VA examination for his claim. The VA examiner confirmed the diagnoses of left knee tendonitis in 1999, left knee meniscal tear in 2012, left knee joint osteoarthritis in 2013, and right knee joint osteoarthritis in 2014. The VA examiner concluded that there is no nexus between the Veteran’s left knee meniscal tear or his osteoarthritis and his service-connected left knee tendonitis, and that the disabilities are comorbid. During the February 2019 Board hearing, the Veteran’s spouse contended that the May 2015 VA examination report and its findings are contradicted by the Veteran’s VA therapy records and the May 2013 physician’s letter. For example, the May 2015 VA examination report indicates that the Veteran did not report flare ups and did not have a history of recurrent effusion. The Veteran’s medical records indicate that both have been present. However, upon review, it appears that the May 2015 VA examination report did not distinguish between which of the Veteran’s symptoms are attributed to each of his diagnosed left knee disabilities. As a result, it is unclear as to whether the Veteran has left knee symptoms that are attributable to more than one disability; or, whether it is not possible to disassociate the various symptoms from the service-connected tendonitis. In other words, a medical opinion is necessary to determine the current nature and likely etiology of the osteoarthritis and meniscal tear repair residuals and to determine whether any of the disabilities have overlapping symptomatology. These matters are remanded for further development and adjudication. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. With appropriate authorization, obtain and associate with the claims file all outstanding private treatment records identified by the Veteran as pertinent to his claims. 3. Schedule the Veteran for an examination to determine the nature and etiology of his status post left knee meniscal tear repair and his left knee traumatic arthritis. The examiner is requested to review all pertinent records associated with claims and opine as to the following: (a.) The VA examiner is requested to list all symptoms attributable to the Veteran’s status post left knee meniscal tear repair and indicate whether any of these symptoms are also attributable to the Veteran’s service-connected left knee patellar tendonitis. (b.) The VA examiner is requested to list all symptoms attributable to the Veteran’s left knee traumatic arthritis and indicate whether any of these symptoms are also attributable to the Veteran’s’ service-connected left knee patellar tendonitis. (c.) The VA examiner is requested to opine whether it is at least as likely as not that the Veteran’s status post left knee meniscal tear repair is causally related to his service-connected left knee tendonitis, or other in-service injury or disease. The VA examiner is requested to comment on the May 2013 private physician statement confirming diagnoses of left knee meniscal tear and patellar tendonitis. (d.) The VA examiner is requested to opine whether the Veteran’s left knee traumatic arthritis is at least as likely as not related to his service-connected left knee tendonitis, or any other in-service injury or disease. (e.) The VA examiner is required to provide a complete rationale for all opinions, with consideration of both the lay and medical evidence of record. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kuksova 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.