Citation Nr: 1736587	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  10-40 484A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for a left knee disorder, to include as secondary to service-connected lumbar spine disability.

2.  Entitlement to a rating in excess of 10 percent for degenerative disc disease of the lumbar spine.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

G. E. Wilkerson, Counsel


INTRODUCTION

The Veteran served on active duty from August 1973 to August 1993.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from December 2009 and September 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

In June 2011, the Veteran testified during a Board videoconference hearing before the undersigned Acting Veterans Law Judge.  A transcript of the hearing is associated with the claims file.

In June 2014, the Board granted service connection for sleep apnea, and remanded the claim for service connection for left knee disorder, along with the claims for increased rating for degenerative disc disease of the lumbar spine and right lower extremity radiculopathy to the Agency of Original Jurisdiction (AOJ) for additional development.

In an October 2016 decision, the Board denied a rating in excess of 10 percent for right lower extremity radiculopathy.  The Board also remanded the claims for service connection for a left knee disorder and for increased rating for degenerative disc disease of the lumbar spine to the AOJ.  The case has since returned to the Board for the purpose of appellate disposition.

The appeal is again REMANDED to the AOJ.  VA will notify the appellant if further action is required.



REMAND

The Board's review of the record reveals that additional development on the remaining claims on appeal is warranted, even though such will, regrettably, further delay an appellate decision.

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Moreover, the Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271 (1998).  As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id.   

With respect to the claim for service connection for a left knee disorder, in the December 2016 remand, the Board instructed that the Veteran be afforded a VA examination to determine the nature and etiology of the claimed left knee disorder.  The examiner was asked to address whether any left knee disorder at least as likely as not is causally or etiologically related to service, or whether it was caused or permanently aggravated by the Veteran's service-connected lumbar spine disability.

The Veteran was afforded an examination in November 2016.  That examiner noted diagnosis of knee strain, but indicated that his review of records did not indicate diagnosis of left knee condition, including arthritis.  The examiner opined that, if degenerative joint disease was present, it is less likely than not related to his service-connected degenerative joint disease of the lumbar spine, which is a separate condition, and he would not develop left knee arthritis due to a back condition.  With respect to whether the claimed left knee disorder is etiologically related to service, the examiner noted that while the Veteran may have sprained his left knee in service as described, it did not sound very significant, and it was not noted in service treatment records.  The examiner indicated that, given the time lapse from military service, and the lack of significant injuries documented in service, it is less likely than not that his left knee disability was related to or incurred in service.

The Board finds this opinion inadequate, as it is unclear as to whether the Veteran has a left knee diagnosis.  In addition, the examiner failed to provide an opinion as to whether the claimed left knee disorder is aggravated by a service-connected disability or provide adequate rationale regarding his opinion on secondary service connection.  Given the foregoing, the Board believes that another examination with clarification on the Veteran's diagnosis and opinion on etiology is necessary to resolve the claim.

With respect to the claim for increased rating for lumbar spine degenerative disc disease, in the December 2016 remand, the Board cited to Correia v. McDonald, 28 Vet. App. 158 (2016), which held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing conditions, and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate.  The Board found that the examinations of record did not comply with Correia, and remanded for additional examination.  The examiner was also asked to provide a retrospective medical opinion addressing the ranges of motion and additional functional impairment of the lumbar spine since 1995.

While the Veteran was subsequently afforded a VA examination in November 2016, the examiner did not provide range of motion findings in both active and passive motion, or in weight-bearing and nonweight-bearing conditions.  The examiner also did not provide retrospective medical opinion regarding ranges of motion and additional functional impairment since 1995.

For the foregoing reasons, the Board finds that this examination is inadequate and not in compliance with its prior remand instructions.  Accordingly, additional examination is warranted.


Accordingly, the case is REMANDED for the following action:

1.  Assist the Veteran in associating with the claims folder updated treatment records.

2.  After securing any treatment records, the Veteran should be afforded a VA examination to determine the nature and etiology of any left knee disorder that may be present.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. 
	
The Veteran has contended that he injured both knees while lifting a refrigerator during service, but that his left knee did not give him as much trouble as his right knee.  See, Bd. Hrg. Tr. at 20.  He has also contended that he has a left knee disorder secondary to his service-connected lumbar spine disability.  

It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge.  If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation.

After examining the Veteran and considering his pertinent medical history and lay statements regarding his reported symptoms, the examiner should identify all current left knee disorders.  In doing so, the examiner should address all prior diagnoses of record, including degenerative joint disease and chondrocalcinosis (see, August 2011 VA treatment record).  

Then, for any left knee disorder identified, the examiner should opine as to whether it is at least as likely as not that such disorder is causally or etiologically related to the Veteran's military service.  

The examiner should also state whether it is at least as likely as not that any identified left knee disorder was either caused by or permanently aggravated by a  service-connected disability, to specifically include a lumbar spine disability.  

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.)

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  

3.  After securing any treatment records, the AOJ should schedule the Veteran for a VA examination by an appropriate examiner to ascertain the severity of the service-connected lumbar spine disability, to include retrospectively.  The examiner must review the claims file and should note that review in the report.  

The examiner should report all signs and symptoms necessary for rating the Veteran's lumbar spine disability.  In particular, the examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing.  If the examiner is unable to conduct the required testing or concludes that the required testing in not necessary in this case, he or she should clearly explain why this is so.  

The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner.  The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss.  To the extent possible, the VA examiner should also provide a retrospective medical opinion addressing the ranges of motion and additional functional impairment of the lumbar spine since 1995.

The examiner should provide a rationale for any opinion expressed and reconcile that opinion with all pertinent evidence of record, including all relevant VA medical records and any lay evidence suggesting that Veteran's service-connected lumbar spine problems are worse than shown on some prior examinations.  

A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  As it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or, in the alternative, the entire claims file, must be made available to the examiner for review.


4.  After the above action has been completed, readjudicate the Veteran's claims.  If any claim remains denied, issue the Veteran and his representative a supplemental statement of the case.  Afford him the appropriate period of time within which to respond thereto.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
SONJA A. MISHALANIE
Acting Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2016).


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