Citation Nr: 0811422 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 06-36 969 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The veteran had active service from December 1965 to September 1967. He received decorations evidencing combat such as the Bronze Service Star with V Device. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 RO rating decision that denied service connection for a right knee disability. In January 2008, the veteran testified at a Travel Board hearing at the RO. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board finds that there is a further VA duty to assist the veteran in developing evidence pertinent to his claims. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2006). The veteran contends that he has a current right knee disability that is related to service. He reports that he suffered an injury to his right knee due to a helicopter crash in January 1967. The veteran has submitted photographs of the helicopter crash and lay statements in support of his claim, including a statement signed by a fellow soldier supporting his reported history as to that incident. As noted above, the veteran had combat service and his allegations as to a right knee injury are considered credible. See 38 U.S.C.A. § 1154(b) (West 2002). His service medical records indicate that on a medical history form at the time of the July 1965 induction examination, the veteran checked that he had swollen or painful joints. He also checked that he did not have a trick or locked knee. The reviewing examiner's notation was somewhat illegible and indicated that if the veteran's knee would become sore he could not bend it. The July 1965 objective induction examination report noted that the veteran had arthralgia of the knee with no treatment and negative findings. It was noted that such disorder was not considered disqualifying. At the time of the September 1967 separation examination, the veteran checked that he did not have trick or locked knee. The September 1967 objective separation examination report included a notation that the veteran's lower extremities were normal. Post-service treatment records show treatment for variously diagnosed right knee problems. For example, an April 2005 X- ray report as to the veteran's right knee, related an impression of bipartite patella, old right proximal fibular fracture, and no radiographic signs of significant joint pathology. The veteran was afforded a VA orthopedic examination in November 2007. It was noted that the veteran's claims file was reviewed. There is no indication that any X-rays were taken as to the veteran's right knee at the time of the examination. The examiner referred to an April 2005 X-ray report and stated that it showed a bipartite patella, healed fracture of the proximal "tibia", and no degenerative joint disease. As to a discussion, the examiner indicated that the veteran's right knee diagnosis was a healed fracture of the proximal "tibia". The examiner stated that there was no degenerative joint disease and that the veteran had a bipartite patella. It was noted that the bipartite patella was a congenital condition. The examiner commented that the veteran gave a history of degenerative joint disease of both knees and that such was inaccurate because he did not have degenerative joint disease of the right knee. The examiner stated that the age of the proximal fibula fracture was old but not determinant as to how old. The examiner provided the following unusually phrased opinion: Based on all the available information, there is no evidence that the veteran's right knee condition noted prior on pre- induction examination. There is no evidence that it was permanently aggravated during the military service. It is less likely as not that any current right knee condition is a result of the injury on 01/05/1967, helicopter. The Board observes that the November 2007 VA orthopedic examination report did not include an X-ray report as to the veteran's right knee. Additionally, the examiner referred to a prior April 2005 X-ray report (noted above) that showed that the veteran had an old right proximal fibular fracture. The examiner, however, referred to a "tibia" fracture on at least two occasions in the examination report. Further, the examiner specifically stated that the veteran did not have degenerative joint disease of the right knee. The Board observes that there is a question as to whether such statement is correct. A subsequent December 2007 VA treatment report related an assessment that included degenerative joint disease, right knee, (X-ray old fracture proximal of the fibula). The Board notes that at the January 2008 Board hearing, the veteran expressed complaints as to the November 2007 VA orthopedic examination. The veteran specifically requested that he be afforded an additional VA examination. Given the potential problems with the examination noted above, as well as the veteran's reported credible history of a right knee injury due to a helicopter crash, and the diagnosis of an old fibular fracture, the Board is of the view that an additional examination should be scheduled on remand. At the January 2008 Board hearing, the veteran also testified that he was told after the helicopter crash that they had him in the hospital on the daily report. He stated that when he got back to the forward fire base, he did go down to the doctor who was in a tent. He reported that the doctor told him to stay off the right knee for several missions. The veteran stated that he was with the Headquarters Company Recon Platoon, 3rd Batallion, 12th Infantry, 4th Infantry Division. He indicated that they were in the 1st Brigade and that the helicopter crash occurred on January 5, 1967. The Board observes that there is no indication in the record that an attempt has been made to obtain any relevant unit sick and morning reports, or daily reports, or other unit records for the period just after the January 1967 helicopter crash. The Board finds that an attempt should be made to obtain any such additional records. Prior to the examination, any outstanding records of pertinent medical treatment should be obtained and added to the record. Accordingly, the case is REMANDED for the following: 1. Contact the National Personnel Records Center (NPRC), or any other appropriate service department offices, and request that a search be conducted for all unit sick and morning reports (or daily reports) for January 1967 for the Headquarters Company Recon Platoon, 3rd Batallion, 12th Infantry, 4th Infantry Division. The histories of the veteran's unit for the January 1967 period should also be obtained. If more details are required to conduct such search, the veteran should be asked to provide the necessary information. The results of such request, whether successful or unsuccessful, should be documented in the claims file, and the veteran informed of any negative results. If the records are not obtainable the RO should render a specific finding that further efforts to obtain such records would be futile. 2. Ask the veteran to identify all medical providers who have treated him for right knee problems since his separation from service. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. Specifically, relevant VA treatment records since December 2007 should be obtained. 3. Schedule the veteran for a VA examination, by an examiner other than the examiner who conducted the November 2007 VA orthopedic examination, to determine the nature and etiology of his claimed right knee disability. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. The examiner should diagnose all current disabilities involving the right knee and neighboring bones. All indicated tests and studies should be accomplished, including X-ray reports. Based on a review of the claims file, examination of the veteran, and generally accepted medical principles, the examiner should provide a medical opinion, with adequate rationale, as to whether it is as likely as not (50 percent or greater probability) that any currently diagnosed right knee disorder is related to any aspect of the veteran's period of service. The examiner should specifically indicate whether any current right knee or leg disability (to include any residual of a fracture of the right tibia or fibula) is related to any aspect of the veteran's period of service, including the veteran's reported right knee injury in a January 1967 helicopter crash. If the examiner finds that any diagnosed right knee condition existed prior to service, the examiner should comment on whether any such pre-service condition was permanently worsened by service. 4. Thereafter, review the veteran's claim for entitlement to service connection for a right knee disability. If the claim is denied, issue a supplemental statement of the case to the veteran and his representative, and provide an opportunity to respond, before the case is returned to the Board. The purposes of this remand are to ensure notice is complete, and to assist the veteran with the development of his claim. 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). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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 Supp. 2007). _________________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).