Citation Nr: 21016068 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 18-10 522 DATE: March 19, 2021 REMANDED Entitlement to service connection for a right leg disability other than varicose veins and right ankle degenerative joint disease (DJD), to include right knee arthritis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from December 1952 to December 1956 and from September 1958 to November 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 1975 rating decision by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The Veteran filed a Notice of Disagreement (NOD) with the July 1975 rating decision and requested a personal hearing at the AOJ. See July 1975 NOD. Unfortunately, the AOJ did not act on this NOD. In November 2014, the Board remanded this matter for the AOJ to issue a Statement of the Case (SOC) and afford the Veteran the requested personal hearing. In January 2018, the AOJ issued an SOC addressing the Veteran’s 1974 claim, including the issue of entitlement to service connection for arthritis. See January 2018 SOC. The Veteran perfected the appeal of this issue and explained that he was seeking service connection for a right leg condition, including right knee DJD related to a right ankle injury in service. See February 2018 VA Form 9. In April 2019, the Board remanded the merits of this matter for additional development. The Board also granted service connection for varicose veins, granted in part and remanded in part the appeal seeking a compensable rating for septoplasty residuals, and directed the AOJ to issue an SOC addressing certain issues, including entitlement to an initial compensable rating for bilateral hearing loss and entitlement to an earlier effective date of service connection for sinusitis. See April 2019 Board Decision and Remand at 14. The AOJ issued this SOC in June 2020 and the Veteran did not perfect a Board appeal as to those matters. In November 2019, the Board granted an initial 30 percent rating for septoplasty residuals from December 1, 1974 to July 25, 2017, and thereafter granted a 10 percent rating. See November 2019 Board Decision. In October 2020, the Board granted service connection for right ankle DJD. The Board also remanded the issue of entitlement to service connection for a right leg disability other than varicose veins and right ankle DJD and directed the AOJ to secure an addendum opinion as to whether the Veteran’s right knee disability was aggravated by service-connected varicose veins and/or right ankle DJD. In December 2020, the AOJ secured the requested addendum opinion from a VA physician’s assistant. The examiner opined that the Veteran’s right knee disability was less likely than not aggravated by his service-connected right ankle disability or varicose veins. See December 2020 Compensation & Pension (C&P) Report. The Veteran’s representative argues that the December 2020 examiner’s opinion is inadequate, as the examiner did not provide a clearly articulated and fully supported rationale. Specifically, the representative states that the examiner relied on copyrighted texts unavailable to the Veteran and that she did not address the effects of biomechanics. Moreover, the representative challenges the competency of the examiner and requests a copy of her curriculum vitae. Additionally, the representative argues that in light of the repeated inability to secure an adequate medical opinion the Board should consider obtaining an addendum opinion from a physiatrist or other physical medicine specialist. See March 2021 Informal Hearing Presentation (IHP). With respect to the representative’s request for a copy of the copyrighted medical articles cited by the examiner, the Board observes that the examiner’s reliance on a bare citation precludes the Board from reviewing whether this medical text evidence contains qualifying or contradictory aspects. See McCray v. Wilkie, 31 Vet. App. 243, 257 (2019) (listing relevant considerations in determining the adequacy and probative weight of a medical opinion). However, while the unavailability of the medical text relied on by the examiner impacts the probative weight assigned to the examiner’s opinion, it does not necessarily render the opinion inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“it is the factually accurate, fully articulated sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion”); McCray, 31 Vet. App. at 257 (the probative value of a medical opinion may be reduced, or its adequacy become questionable, if the opinion is not based on sufficient facts or data, is not the product of reliable principles and methods, or is not the result of principles and methods reliably applied to facts). Thus, the examiner’s citation to medical articles not of record is not, standing alone, a reason for remand. However, once a veteran has raised the issue of an examiner’s competency to offer a medical opinion, he or she has the right, absent unusual circumstances, to the curriculum vitae and other information about the qualifications of the examiner. Francway v. Wilkie, 930 F.3d 1377 (Fed. Cir. 2019). Here, the Veteran’s representative has made such a request; on remand, the Veteran should be provided a copy of the December 2020 examiner’s curriculum vitae. Additionally, the Veteran has raised the question of the role, if any, of biomechanics. This question was not addressed in the December 2020 examiner’s opinion, and on remand an addendum opinion should be secured addressing biomechanics. Updated VA treatment records should also be secured. The Board acknowledges the request that the addendum opinion come from a physiatrist or other expert in physical medicine. Given the repeated attempts to secure an adequate medical opinion, the Board agrees that such a request may be useful. On remand, the Board will direct that the AOJ attempt to obtain an opinion from a physiatrist or other physical medicine specialist. However, the Board emphasizes that if a specialist opinion cannot be secured, an adequate opinion from a generalist practitioner would also substantially comply with these remand directives. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Provide the Veteran information necessary to assess the competency of the examiner who provided the December 2020 addendum opinion, to include a copy of the examiner’s curriculum vitae. If this cannot be provided, the Veteran must be informed why that is so. 3. Obtain an addendum opinion addressing the etiology of the Veteran’s right knee disability, preferably from a physiatrist or other physical medicine specialist, if possible. No examination of the Veteran is necessary unless the examiner deems otherwise. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s right knee disability has been aggravated (worsened beyond natural progression) by his right ankle disability. The examiner should address the article submitted by the Veteran’s representative (see March 2021 Appellate Brief at 3), to include a discussion of the relevance, if any, of biomechanics: Felson DT, Lawrence RC, Dieppe PA, Hirsch R, Helmick CG, Jordan JM, Kington RS, Lane NE, Nevitt MC, Zhang Y, Sowers M, McAlindon T, Spector TD, Poole AR, Yanovski SZ, Ateshian G, Sharma L, Buckwalter JA, Brandt KD, Fries JF. Osteoarthritis: new insights. Part 1: the disease and its risk factors. Ann Intern Med. 2000 Oct 17; 133(8):635-46. doi: 10.7326/0003-4819-133-8-200010170-00016. PMID: 11033593. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why this is the case. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, Associate 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.