Citation Nr: 21015600 Decision Date: 03/18/21 Archive Date: 03/17/21 DOCKET NO. 08-02 346 DATE: March 18, 2021 REMANDED Entitlement to service connection for a right knee disability, to include osteoarthritis is remanded. Entitlement to a temporary total rating under 38 C.F.R. § 4.30 based on convalescence following right knee arthroscopy in August 2006 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1981 to September 1991, and from October 2003 to February 2004. The Veteran had additional duty in the Army National Guard. This case stems from an August 2007 rating decision. As will be further explained below, these matters have had a lengthy procedural history which includes multiple appearances before the Board, as well as an appeal to the United States Court of Appeals for Veterans Claims (Court) that resulted in a joint motion for remand (JMR). 1. Entitlement to service connection for right knee disability, to include osteoarthritis is remanded. Due to the lengthy and complex procedural history of this claim, the Board wishes to provide relevant background. The Veteran first filed a claim for service connection for a right knee condition, secondary to a service-connected left knee condition, in August 2006. In November 2006 and August 2007 rating decisions, the agency of original jurisdiction (AOJ) recharacterized the Veteran’s claim as one for service connection for “right medial meniscus posterior horn tear and medial femoral condyle cartilage fissures fibrillation with subchondral bone exposure” and denied the claim as not being caused by the service-connected left knee disability. The Veteran appealed these decisions and the claim eventually came before the Board in January 2014. At that time, the Board found that prior VA examinations had not addressed whether the Veteran’s left knee disability had aggravated his right knee disability, and remanded the matter for a new examination. The matter was once again before the Board in September 2014. At that time, the Board continued to characterize the issue as “right medial meniscus posterior horn tear and medial femoral condyle cartilage fissures fibrillation with subchondral bone exposure.” However, in its findings of fact, the Board noted that the Veteran had a diagnosis of right knee arthritis and that it was not compensably disabling within a year of separation from active duty. The Board then denied the claim for service connection for a right knee disability. The Veteran appealed the Board’s decision to the Court. In May 2015, the Veteran and the Secretary agreed to the JMR discussed above. In the JMR, the parties observed that the record contained evidence of an April 2008 line of duty report regarding back and bilateral knee injuries. This report had not been addressed by VA examiners. Moreover, this report suggested that there were records from the Veteran’s National Guard duty that were not associated with the claims file. In July 2015, the Board then remanded the claim, subsequent to the JMR. In doing so, the Board instructed the AOJ to obtain all available records of the Veteran’s National Guard service. The Board also noted that there had not been a medical opinion addressing the April 2008 line of duty injury, to include whether this injury aggravated a disability that had existed prior to the Veteran’s March 2008 active duty for training (ACDUTRA) service. As a result of the Board’s July 2015 remand, in December 2015, the Veteran underwent a new VA examination. At that time, the examiner noted two separate right knee diagnoses: a meniscal condition and osteoarthritis. The examiner found that the meniscal tear was caused by the Veteran’s April 2008 line of duty injury, noting that the Veteran had a previously-resolved meniscal condition in August 2006, followed by arthroscopic surgery to repair the meniscus once again in September 2008. However, the examiner reported that the Veteran’s osteoarthritis was not secondary to his April 2008 line of duty injury. Following the December 2015 examination, in April 2016, the AOJ issued a rating decision granting entitlement to service connection for right medial meniscus posterior horn tear and medial femoral condyle cartilage fissures fibrillation with subchondral bone exposure, effective September 17, 2009. At the same time, the AOJ issued a supplemental statement of the case denying service connection for a right knee disability other than that based on the April 2008 injury. In September 2017, the case was once again before the Board. At that time, the Board identified the remaining right knee issue specifically as service connection for arthritis of the right knee. The Board observed that, despite the numerous opinions of record regarding whether the Veteran’s right knee condition was caused or aggravated by his left knee disability, there were no opinions addressing direct service connection due to active duty service. Although the Veteran had filed the claim on a secondary basis, the Board still had a duty to address service connection on a direct basis in light of evidence of right knee complaints in the Veteran’s active duty service treatment records. Therefore, the Board remanded the claim once again for a new medical opinion. Thus, to clarify, during the appeal period of this claim, the Veteran’s claimed issue of a right knee condition has been bifurcated into two separate disabilities. The first disability, a right knee meniscal condition identified in 2008, was found to be causally related to an April 2008 injury incurred during ACDUTRA service. The Veteran has been granted service connection for that distinct issue. The second disability, for which service connection has not been resolved, is a right knee disability to include osteoarthritis. Regarding that disability, the Board notes that the Veteran first began to complain of right knee pain secondary to climbing stairs as part of his civilian occupation in June 2006. In July 2006, an MRI demonstrated evidence of a medial femoral condyle anterior osteochondral fracture with underlying bone bruise. That MRI also showed mild medial compartment narrowing and spurring, consistent with degenerative arthritis. The Veteran then underwent August 2006 arthroscopic knee surgery with partial meniscectomy and abrasion chondroplasty. In January 2020, the AOJ obtained a new medical opinion regarding the right knee condition. At that time, the examiner opined that the right knee condition was already service connected and that the right knee osteoarthritis was sequela for traumatic changes of the already service-connected right knee condition. The AOJ noted, however, that this opinion had not adequately addressed the Board’s September 2017 remand questions. Thus, the AOJ requested an addendum opinion from the examiner. In March 2020, the examiner provided a further opinion. The examiner first noted that the right knee complaint documented during active service in April 1990 was negative for a diagnosis of osteoarthritis or meniscal tear. Instead, the examination was positive for a diagnosis of patellofemoral pain syndrome, which the examiner explained is a medical entity pathophysiologically unrelated to osteoarthritis and meniscal tears. However, the examiner went on to state that the etiology of the Veteran’s osteoarthritis was the post-surgical changes of the Veteran’s August 2006 right knee surgery, as osteoarthritis has a very high prevalence after knee surgery. Unfortunately, the Board finds that this opinion is based on an inaccurate medical timeline. As was noted above, the Veteran underwent a July 2006 MRI that showed degenerative changes of the knee. Thus, there was medical evidence of arthritis prior to the August 2006 surgery. Although the examiner provided some support for why osteoarthritis was not causally related to the Veteran’s in-service complaints, the examiner’s ultimate conclusion—that osteoarthritis was caused by the August 2006 surgery—appears to be a mis-reading of the timeline of the diagnosis. Furthermore, the examiner did not address other in-service treatment records as specifically requested by the Board, to include a January 1988 meniscus tear with subsequent arthroscopic surgery. Thus, as the examiner’s conclusion is not based on an adequate reporting of the medical record, the Board cannot accept the opinion as adequate. Accordingly, on remand a new medical opinion is necessary. The examiner should review the Veteran’s entire claims file and medical history. The examiner should then address whether any right knee disability—to include the meniscal condition addressed in the August 2006 surgery, as well as the degenerative changes identified in the July 2006 MRI—were caused by or incurred in service. 2. Entitlement to a temporary total rating under 38 C.F.R. § 4.30 based on convalescence following right knee arthroscopy in August 2006 is remanded. The issue of whether the Veteran is entitled to a temporary total rating based on convalescence following right knee arthroscopy in August 2006 is directly intertwined with the issue remanded above. Thus, this issue must be remanded as well. The matters are REMANDED for the following action: 1. Obtain a medical opinion regarding the Veteran’s right knee disabilities other than the meniscal condition treated in September 2008. The Board specifically points the examiner’s attention to the degenerative changes identified in a July 2006 MRI, as well as the meniscal condition involved in the Veteran’s August 2006 partial meniscectomy. The examiner should review the entire claims file, to include a copy of this Remand, and the report of examination should include discussion of the Veteran’s documented history and assertions. Then, with respect to the right knee osteoarthritis that was identified as early as July 2006, the examiner should render an opinion, as to whether is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to service. With respect to the meniscal condition addressed in the August 2006 right knee partial meniscectomy, the examiner should render an opinion as to whether it is at least as likely as not that the disability had onset in, or is otherwise related to service. The Board is aware that the Veteran suffered an additional right meniscal tear related to an April 2008 in-service injury, and that service connection has been established for that specific injury. However, if the examiner identifies any additional right knee disability, aside from those already discussed here, the examiner should render an opinion as to whether it is at least as likely as not that the disability had onset in, or is otherwise related to service. In doing so, the examiner should consider: - August 1987 service treatment records documenting mild swelling in the right knee - A January 1988 inpatient record showing that the Veteran had a bucket handle tear of the medial meniscus of the right knee and underwent arthroscopy of the knee with excision of semilunar cartilage - An April 1990 service treatment record documenting a history of persistent right knee periarticular pain The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. 2. Once the above development has been achieved, as well as any other development deemed necessary thereafter, readjudicate the appeal. If any benefits sought remain denied, issue a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Giaquinto, 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.