Citation Nr: 18160363
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 15-04 373
DATE:	December 26, 2018
REMANDED
Entitlement to service connection for a left knee injury is remanded.
REASONS FOR REMAND
The Veteran had honorable service with the United States Army National Guard from November 1997 to July 2005.  He was activated from August 2004 to September 2004.  
In his February 2014 substantive appeal, the Veteran requested a hearing at a local VA office.  In July 2016, the Veteran testified at a Board video conference hearing.  A transcript of that hearing has been associated with the claims file.
Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant’s claim so that he is afforded every possible consideration.  38 U.S.C. § 5103A (West 2014); 38 C.F.R. § 3.159 (2018).
Entitlement to service connection for a left knee injury is remanded.
The Veteran contends that his left knee condition is causally related to active service, to include as due to in-service treatment for a left knee injury.
Service treatment records show numerous complaints of left knee pain and swelling.  In August 2004, the Veteran sought treatment for a left knee injury following physical training.  Reportedly, he performed a duck-walk and endured persistent pain for 6 days thereafter.  Other symptoms included pain with walking, squatting, and bending which radiated from the left knee into the thigh.  On physical examination, evidence of edema was noted above the patella with no laxity.  Range of motion was described as “good” with full activity.  The Veteran was diagnosed with effusion, bursitis, and possible degenerative joint disease (DJD) of the left knee.  Rehabilitation exercises were provided and he was prescribed over-the-counter medication for pain.  The Veteran was granted a temporary profile for left knee effusion with restrictions on running, excessive walking, standing, squatting and lifting more than 20 pounds.  A subsequent profile was granted in April 2005 due to anxiety and panic attacks.  There was no reference to complaints of left knee pain.  In June 2005, the Veteran again complained of left knee pain with physical activity, to include performance of the duck-walk.  Evidence of effusion, crepitus and leg laxity was observed.  The Veteran was deemed medically disqualified from service in June 2005.
Post-service, the Veteran reported left knee pain and clicking over a 2-year period in October 2007.  X-ray films revealed mild osteoarthritis.  In September 2009, the Veteran reported left knee pain after overstepping on a steep hillside embankment.  He endorsed pain, swelling, and a popping sensation in December of the same year.  During a physical examination, a non-tender, popliteal mass measuring at 2 centimeters (cm) was observed about the knee.  The assigned diagnoses included arthralgia of the left leg, left knee sprain, and a popliteal cyst.  In January 2010, magnetic resonance imaging (MRI) revealed a left knee meniscal tear.  The Veteran underwent an arthroscopy of the left knee, with partial medial and lateral meniscectomy in March 2010.  Chondromalacia of the femoral trochlea of the patella was also indicated.
In December 2010, the Veteran’s left knee condition was evaluated by a private physician in connection with a claim for workmen’s compensation.  The opinion noted that Veteran was employed as a tree trimming supervisor with the Department of Parks and Recreation for 31 years.  On physical examination, the Veteran’s left knee range of motion was 0 to 135 degrees, with no evidence of varus or valgus laxity.  Mild crepitus was observed under the left knee cap.  There was no evidence of patella grind or inhibition.  Motor function was described as intact to the lower extremities.  No effusion of the knee was observed.  Following a review of the Veteran’s medical history and clinical interview, the physician noted a pre-existing history of left knee problems to include a prior diagnosis of osteoarthritis.  Even assuming his work-related injury in September 2009, there was no evidence of a direct blow to the Veteran’s knee or edema consistent with a left knee contusion shown on MRI.  Therefore, the physician concluded that the Veteran’s left knee condition was causally related to his underlying osteoarthritis.
In a subsequent correspondence, dated August 2011, an employee claims specialist notified the Veteran that no further treatment was authorized for his left knee as the condition was deemed causally related to his pre-existing osteoarthritis and not the work-related industrial incident in September 2009.
Review of the record indicates that the Veteran was afforded a VA examination in August 2013.  The opinion was prepared without an in-person interview.  Following a review of the claims file, the examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran’s left knee condition was incurred in or caused by the claimed in-service injury, event, or illness. 
In support of the stated conclusion, the examiner noted the Veteran was evaluated for left knee pain and swelling following physical training in August 2004.  Persistent pain was endorsed over a 6-day period.  The assigned diagnoses included left knee effusion and bursitis with DJD symptoms.  According the examiner, the Veteran’s left knee injury was acute and fully resolved prior to separation.  The examiner acknowledged that the Veteran was granted a temporary profile with restricted physical activity for left knee effusion in August 2004.  In April 2005, the Veteran was granted an additional profile due to panic attacks however, there was no reference to a left knee condition or restrictions on physical activity.  Therefore, the examiner concluded that the Veteran’s claimed left knee injury was objectively resolved at separation.  
Post-service, the Veteran’s employment history included a lengthy tenure with the Department of Parks and Recreation.  In September 2009, he reportedly suffered an on-the-job injury to the left knee.  Radiologic imaging revealed a medial and lateral meniscus tear with osteoarthritis.  An arthroscopic partial meniscectomy was performed in March 2010.  Considering the forgoing, the examiner opined that the Veteran’s left knee injury was acute and resolved prior to separation.  Further, post-service symptoms lacked continuity to similar symptoms in-service and were more likely related to an on-the job knee injury in September 2009.  It was therefore concluded that it was less likely than not that the Veteran’s left knee condition was causally related to active service, to include in-service treatment for a left knee injury.
On review of the record, the Board finds the August 2013 VA opinion inadequate.  Specifically, the examiner concluded that the Veteran’s left knee condition resolved prior to separation with no continuity of symptoms thereafter.  However, review of the record shows complaints of left knee symptoms in April 2004 and June 2005.  Possible DJD was also noted.  In October 2007, the Veteran reported persistent symptoms over a two-year period with X-ray findings indicating osteoarthritis.  The Board finds that the record suggests continuity of symptomology.  Further, a private medical opinion, dated December 2010, indicated a possible link between the Veteran’s worsening left knee condition and his pre-existing diagnosis of osteoarthritis and not his work-related injury in September 2009.  The Board observes that August 2013 examiner’s opinion made no reference to consideration of the private opinion or the evidence of continuity of symptomatology. 
Accordingly, the Board finds that a new opinion is required.
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).
This matter is REMANDED for the following action:
1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran’s left knee condition.  The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report.  All necessary tests and studies should be conducted. 
The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability), that the Veteran’s left knee condition is causally related to active service, to include in-service treatment for a left knee injury.  The examiner attention is called to medical evidence suggesting continuity of symptomatology.
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. 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.
2. Thereafter, re-adjudicate the Veteran’s claim.  If any benefit sought remains denied, provide the Veteran with a Supplemental Statement of the Case and an adequate opportunity to respond before returning the matter to the Board for further adjudication, if otherwise in order.
The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012).
 
ANTHONY C. SCIRE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Whitaker, Associate Counsel

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