Citation Nr: 21008298 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 14-27 387 DATE: February 16, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for a right knee strain with chondromalacia patella is remanded. Whether new and material evidence has been received to reopen the previously denied claim of service connection for a left knee disorder, to include as secondary to service-connected right knee strain with chondromalacia patella, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1981 to January 1994. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Board remanded the claim of entitlement to an initial compensable rating for a right knee strain with chondromalacia patella for additional development. Upon consideration of the additional development completed, an interim June 2019 rating decision granted in increased 10 percent initial rating from April 30, 2012, the date of receipt of the Veteran’s claim for service connection. In September 2019, the Board denied a rating in excess of 10 percent for right knee strain with chondromalacia patella. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In September 2020, the Court granted a Joint Motion for Remand, vacated the September 2019 decision and remanded the case to the Board. In the Joint Motion, the parties requested the Court to vacate and remand the right knee increased initial rating claim including because development requested in the May 2018 Board remand had not been completed and the Veteran had not been provided an adequate VA examination. Specifically, the parties argued that the Board had remanded the claim to obtain private treatment records and, although the Veteran did not return the forms authorizing VA to obtain these records, the Board did not discuss 38 C.F.R. § 3.159(e)(2), regarding the duty to assist in obtaining relevant records. Review of the record shows that, although private treatment records from Virtua Health Camden were received in July 2020, records from Pennsauken Diagnostic Center and the Vantage Surgery Center have not been obtained. Therefore, the Veteran will be requested to obtain the records and provide them to VA. In addition, the parties argued that a new VA examination is warranted because the April 2019 VA examiner did not discuss the Veteran’s history of recurrent effusion and meniscus injury. In this regard, the Veteran recently underwent VA knee examination in December 2020; however, this examination report is insufficient for rating purposes, including because the examiner noted that there is objective evidence of right knee pain on passive range of motion and when the joint is used in non-weight bearing but provided no corresponding range of motion findings (only initial range of motion findings are provided). As such, another examination with opinion addressing the Veteran’s assertions, including right knee instability, effusion and meniscus injury, is necessary. Regarding the claim of service connection for a left knee disorder, review of the record shows an unappealed August 2010 rating decision denied service connection and an unappealed January 2012 rating decision found no new and material evidence had been submitted to reopen the claim; however, the December 2020 examination report includes the opinion that the Veteran’s “left knee strain is due to overcompensation due to pain in the right knee; the meniscal tear is most likely the cause of the knee strain; the popliteal is not related; the PFPS is a direct result of the knee strain.” In Bailey v. Wilkie, 2021 U.S. App. Vet. Claims LEXIS 13, 35, the Court held that “VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability.” Accordingly, the right knee increased rating claim has been expanded to include the claim of service connection for a left knee disorder under the theory of secondary service connection and, as there are prior final denials of service connection for a left knee disorder, the claim has been characterized as stated on the title page. See also, Roberson v. Principi, 251 F. 3d 1378, 1384 (2001) (“VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations.”). The matters are REMANDED for the following action: 1. Please provide the Veteran a letter requesting that he obtain the records from Pennsauken Diagnostic Center and the Vantage Surgery Center and provide them to VA as he has not provided necessary releases. The Veteran is advised it is ultimately his responsibility to submit this evidence. 2. Please undertake appropriate development to obtain copies of complete updated clinical records (any not already of record) of all VA treatment the Veteran has received for his knee disorders. 3. After the development in paragraphs 1 and 2 have been completed to the extent possible, please schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and severity of his service-connected right knee disability. All indicated tests should be performed. After interview and examination of the Veteran and review of his claims file, the examiner is requested to delineate all symptomatology associated with, and the current severity of, his right knee disability. In particular, the examiner should respond to the following: a) Identify and describe all current right knee symptomatology and report range of motion findings in active motion, passive motion, weight-bearing, and nonweight-bearing, if possible. If the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. The examiner should specifically review the December 2020 examination report, which shows initial right knee range of motion of 0 to 5 degrees and inability to perform repetitive use testing with at least three repetitions and, if inconsistent with current examination, reconcile such findings. b) Please identify ranges of motion without consideration of the ameliorative effects of medication. c) Please express an opinion as to the extent to which the Veteran experiences functional impairments during flare-ups, and estimate any related functional loss in terms of additional range of motion loss. If such an estimate cannot be provided, the examiner must indicate that he or she has considered all procurable and assembled data, and that the inability to provide an estimate results from limitations in the knowledge of the medical community at large, and not limitations of his or her personal knowledge or a reluctance to provide an opinion on symptoms not directly observed. d) The examiner should specifically clarify the conflicting evidence of regarding recurrent effusion (February 2016 VA examination notes history of recurrent effusion, but April 2019 VA examination notes no such history). e) The examiner should also clarify the conflicting evidence with respect to instability in light of the Veteran’s reports that his knee buckles and gives out on him in an August 2015 Reconstructive Orthopedics record. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A full rationale is to be provided for all stated medical opinions. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. After conducting any additional development deemed necessary, please review the December 2020 VA knee examination report and opinion therein and adjudicate the matter of whether new and material evidence has been received to reopen the previously denied claim of service connection for a left knee disorder, to include as secondary to service-connected right knee strain with chondromalacia patella, in the first instance. The December 2020 examination report includes the opinion that the Veteran’s “left knee strain is due to overcompensation due to pain in the right knee; the   meniscal tear is most likely the cause of the knee strain; the popliteal is not related; the PFPS is a direct result of the knee strain.” M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kshama Hughes 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.