Citation Nr: 1109596 Decision Date: 03/10/11 Archive Date: 03/24/11 DOCKET NO. 06-12 542 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a bilateral eye disorder, to include dry eyes, claimed as a left eye condition. 2. Entitlement to service connection for a left knee disorder, claimed as degenerative joint disease (DJD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David Gratz, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1984 to April 1987, and from October 1988 to February 1992. The Veteran also served in the National Guard from April 1987 to October 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which, inter alia, denied the Veteran's April 2003 claims for entitlement to service connection for dry eyes, claimed as a left eye condition, and DJD of the left knee. The Veteran originally requested a hearing before a Decision Review Officer (DRO) in his April 2006 substantive appeal; however, in March 2009 statements written by the Veteran and his representative, the Veteran withdrew his request for a hearing before a DRO. The case was previously before the Board in October 2009. At that time, the Board remanded the issues of service connection for dry eyes, claimed as a left eye condition, and for DJD of the left knee to the RO for additional development. The case has been returned to the Board for further appellate consideration. The issue of entitlement to service connection for a left knee disorder, claimed as DJD, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT A bilateral eye disorder, to include dry eyes, is not shown by competent or credible evidence to be related to the Veteran's active military service or to any incident therein. CONCLUSION OF LAW A bilateral eye disorder, to include dry eyes, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist the Veteran Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1). Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Letters dated May 2003, July 2005, and September 2005, provided to the Veteran before the July 2004 rating decision and the February 2006 statement of the case, respectively, satisfied VA's duty to notify under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159, since they informed the Veteran of what evidence was needed to establish his claim, what VA would do and had done, and what evidence he should provide. The letters also informed the Veteran that it was his responsibility to help VA obtain medical evidence or other non-government records necessary to support his claim. During the pendency of this appeal, the Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. The Veteran was provided with such notice in March 2006. In this regard, after initially providing VA notice, followed by subsequent Dingess notice in March 2006, the RO readjudicated the claim in a supplemental statement of the case in December 2010. Thus, the timing defect in the notice has been rectified. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV) (holding that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC). In addition, the Veteran has never alleged how a timing error prevented him from meaningfully participating in the adjudication of his claim. As such, the Veteran has not established prejudicial error in the timing of VCAA notice. Shinseki v. Sanders and Simmons, 129 S. Ct. 1696 (2009). With respect to VA's duty to assist, the RO has obtained, or made reasonable attempts to obtain, all relevant evidence identified by the Veteran. The Veteran's available service treatment records, service personnel records, VA treatment records, and private treatment records have been obtained. The Board has considered that certain of the Veteran's service treatment records, including the records from June 1984 to April 1987, are unavailable. Under 38 U.S.C.A. § 5103A(b) and 38 C.F.R. § 3.159(c)(2), VA is required to make as many requests as are necessary to obtain relevant records from a Federal department or agency. VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist, or that further efforts to obtain those records would be futile. Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist, or the custodian does not have them. In response to the AOJ's request for the Veteran's service treatment records (previously called "service medical records," or SMRs) from his first period of service (June 1984 to April 1987), the National Personnel Records Center (NPRC) responded in January 2004 that "there are no additional SMRs." In light of the NPRC's response, the Board finds no basis for further pursuit of these records, as such efforts would be futile. 38 C.F.R. §§ 3.159(c)(2), (3). Additionally, in a June 2006 letter, VA requested that the Veteran send in his service treatment records from June 1984 to April 1987. VA also requested these records from the Veteran's Commanding Officer in a June 2006 letter. Furthermore, in an undated Memorandum, a VA employee noted that VA had made a request for records from the Personnel Information Exchange System (PIES) in May 2003, and that PIES had sent a negative response in January 2004. The Memorandum also showed that VA had received a negative reply from the Veteran's Commanding Officer in November 2006, and that the Veteran had also not provided these records. Finally, in January 2009, VA requested the Veteran's service treatment records from June 1984 to April 1987 from the U.S. Army Reserve Personnel Command (ARPERSCOM); in February 2009, the Army Human Resources Command (AHRC) replied that they did not have any additional service medical records regarding the Veteran. Where, as here, a Veteran's records have been lost while in the government's possession, VA has a heightened duty to assist the Veteran by advising him of alternative forms of evidence that can be developed to substantiate the claim, and explaining how service records are maintained, why the search was a reasonably exhaustive search, and why further efforts to locate the records would not be justified. Dixon v. Derwinski, 3 Vet. App. 261, 263-264 (1992). In addition, VA has heightened duties to consider the benefit of the doubt rule, assist in developing the claim, and explain its decision. Cromer v. Nicholson, 19 Vet. App. 215 (2005); Washington v. Nicholson, 19 Vet. App. 362, 370-71 (2005). No presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records. Cromer v. Nicholson, 19 Vet. App. 215 (2005) (Court declined to apply "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). In this case, VA advised the Veteran of numerous examples of evidence that could be developed to substantiate his claims in its May 2003, July 2005, and September 2005 letters. Moreover, in the above paragraphs, VA explained that it had contacted the NPRC, the Veteran's Commanding Officer, PIES, and ARPERSCOM/AHRC, and did not stop contacting them until a reply was received; that the search was therefore a reasonably exhaustive search under 38 U.S.C.A. § 5103A(b) and 38 C.F.R. § 3.159(c)(2); and that further efforts to locate the records would not be justified because those institutions did not have the requested records. Dixon v. Derwinski, 3 Vet. App. 261, 263-264 (1992). The Veteran has not reported that he is in receipt of Social Security Administration (SSA) benefits for his claimed bilateral eye disorder. Absent any evidence showing that the Veteran is in receipt of said benefits for his claimed disorder, VA need not attempt to obtain his SSA records. Golz v. Shinseki, 590 F.3d 1317, 1323 (2010). The Board is also satisfied as to compliance with its October 2009 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). The Board finds that the AOJ scheduled the Veteran for an eye examination, and that the January 2010 examination report is responsive to the questions presented by the Board. The Board further notes that the AOJ provided the Veteran with a Supplemental Statement of the Case (SSOC) in December 2010. Accordingly, the Board finds that no further assistance to the Veteran in acquiring evidence is required by statute. 38 U.S.C.A. § 5103A. Laws and Regulations Pertaining to Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.1(k), 3.303(a). In order to prevail in a claim for service connection there must be medical evidence of a current disability as established by a medical diagnosis; incurrence or aggravation of a disease or injury in service, established by lay or medical evidence; and a nexus between the in-service injury or disease and the current disability, established by medical evidence. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Further, if a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38C.F.R. § 3.303(b). For the showing of chronic disease in service, (or within a presumptive period per § 3.307), there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. Medical nexus evidence demonstrating an etiological link is not necessary to prove service connection when evidence, regardless of its date, shows that a Veteran had a chronic condition in service, or during an applicable presumptive period, and that he still has the same chronic condition. Groves v. Peake, 524 F.3d 1306, 1309-1310 (2008). See also 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Analysis: Service Connection for a Bilateral Eye Disorder, to include Dry Eyes, Claimed as a Left Eye Condition In evaluating the Veteran's claim, the Board will consider all eye disorders, whether claimed by the Veteran or diagnosed by clinicians. Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (requiring VA to broadly construe the benefits sought by a Veteran). In his January 1992 separation examination, the Veteran, for the first time, checked a box indicating that he had, or had had, eye trouble. A clinician noted that the Veteran had gotten sand in his eye 6 months ago, which caused acute pain. The clinician further noted that there had been no recurrence of the pain. On clinical evaluation, the Veteran's eyes were found to be in normal health. A private physician, A.M. Woodward, M.D., found that the Veteran's eyes were clear in a January 1995 report. In an April 2003 statement, the Veteran asserted that he has itching, pain, and a feeling of sand in his eye; he reported that he keeps his eyes lubricated with eye drops because he cannot afford to keep visiting the doctor. Also in April 2003, the Veteran told a VA clinician that he had chronic eye pain, but that an optometrist had told him 2 years ago that his eye examination was normal. The VA clinician also noticed no obvious abnormalities of related systems, and diagnosed the Veteran with chronic left eye pain. In May 2003, the Veteran was provided with his first VA examination of his eyes. The Veteran reported that he occasionally feels sharp pain in his left eye that does not last for more than a second, and also occasionally feels a foreign body sensation in his left eye. The Veteran reported having some itching and burning in his eyes. He reported that he has had no eye injuries or surgeries. On examination, the Veteran was found to have, in both eyes, melanosis. The examiner also found debris in the tear film in both eyes. The examiner diagnosed the Veteran with essential emmetropia (perfect vision) and dry eyes, and did not provide an etiological opinion. Another private physician, N. Williamson, M.D., found in January 2004 that the Veteran's pupils were equal, round, and reactive to light; his extraocular movements were intact; and his sclera were clear. In an April 2004 statement to a VA clinician, the Veteran also enquired about whether exposure to depleted uranium or a chemical agent could have caused his dry eyes. A January 2001 letter sent from the Special Assistant to the Secretary of Defense for Gulf War Illnesses, Medical readiness, and Military Deployments, had informed the Veteran that "there is no indication that any long-term health effects would be expected from the brief, low-level exposure to chemical agents that may have occurred near Khamisiyah." The Veteran has provided no evidence of exposure to depleted uranium. In his May 2005 notice of disagreement, the Veteran asserted that, while deployed to Saudi Arabia and Kuwait, he "was exposed to numerous sand storms, getting sand in my eyes, nose, and mouth. [I was e]xposed continuously to multiple, multiple [sic] oil well fires, smoke, soot and debris in the air. My tears, nasal secretions, and saliva all had a black tint caused by breathing in the fumes from these burning oil wells. I strongly believe that this constant exposure is what has caused this condition. My eyes hurt a lot and feels [sic] like sand is in them all the time." Also in May 2005, another private clinician, S.A. Roberts, D.O., determined that the Veteran's eyes had pupils that were equal, round, and reactive to light (PERRL). Additionally, the Veteran's extraocular movements were intact (EOMI). His sclarae were nonicteric, and his conjunctivae were normal in appearance. In April 2009, the Veteran was provided with a second VA examination. The Veteran stated that his eyes burn and itch, and he feels like he has sand in his eyes. The Veteran reported that he sometimes has a sharp pain behind his left eye. He also reported having dry eyes. The examiner diagnosed him with dry eyes and presbyopia (a progressively diminished ability to focus on near objects, caused by aging). The examiner explained that only 5 percent of people develop dry eyes at an age younger than the Veteran, and opined that it is less likely than not that the Veteran's current dry eye symptoms were incurred or caused by his military service. In its October 2009 remand, the Board requested a new examination in order to determine whether the Veteran has melanosis (pigment dispersion syndrome) or debris in the tear film of one or both eyes, as diagnosed by a VA examiner in May 2003; and whether it is at least as likely as not that either or those disorders were caused or aggravated by the Veteran's time in service, including by regular high-impact exercises, and by exposure to sand, oil well fires, smoke, soot and debris in the air. VA provided the Veteran with the requested examination in January 2010. The VA examiner reviewed the Veteran's claims file and medical records. The Veteran denied experiencing any injury or trauma to his eyes while in service, but he also reported that, during Desert Storm, he would often get sand and debris in his eyes because his goggles would fog up and he could not always wear them. The Veteran noted that his eyes still feel dry, even with use of artificial tears (AT), and are worse in the morning. He reported getting "white stuff" in the corners of his eyes. The Veteran noted that he works full time as a truck driver. On examination, the VA examiner found no abnormal accommodation, abnormal lacrimal duct function, abnormal eyelids, chronic conjunctivitis, residuals of an eye injury, lagophthalmos, symblepharon, ptosis, nystagmus, eyelash loss, or eyebrow loss. The examiner determined that melanosis was not due to the Veteran's service. He explained that the "melanosis documented on 05/2003 is pigment found on the conjunctiva. It is a normal finding and is not the same things as pigment dispersion syndrome. Gonioscopy was performed today with all angles open to cilliary body band and no pigment [was] found on the trebecular meshwork." The examiner further determined that the Veteran's diagnosed dry eyes were not due to his service, and that "there was no debris found in the tear film." Because the Veteran's January 2010 VA examination was conducted by a competent optometrist who fully described the functional effects caused by the Veteran's disorder on his occupational functioning and daily activities, the Board finds that the Veteran's examination was adequate. Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). Moreover, the VA examiner considered the Veteran's claims file and medical history in the report. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Additionally, the VA examiner provided an etiological opinion, complete with the rationale described above. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board further finds that the VA examiner's medical findings are credible, based on their internal consistency and the VA examiner's duty to offer truthful opinions. Consequently, the Board assigns considerable probative value to the VA examiner's report. Competent medical evidence includes statements from a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Because the January 2010 VA examiner is so qualified, his medical opinions constitute competent medical evidence. The Board finds that the Veteran is competent to report that he experienced acute pain after getting sand in his eye in service in 1991. The Veteran is also competent to report that he has itching, burning, pain, and a feeling of sand in his eyes. Similarly, the Veteran is competent to observe that he was exposed to oil well fires, smoke, soot and debris in the air while in service, and that he had a black tint to his tears, nasal secretions, and saliva during that time. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) ("Competent lay evidence" is evidence provided by a person who has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a)(2) ("Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.) See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). However, the Veteran's own determination about the etiology of his diagnosed dry eyes is outweighed by the more probative findings of the January 2010 VA examiner, because his determinations are based on greater medical knowledge and experience. Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Furthermore, the Board finds that the most probative evidence of record shows that the Veteran does not have, and has not had, debris in his eyes from his time in service through the pendency of the claim. The finding of debris in the tear film in both eyes by the May 2003 VA examiner is outweighed by the more numerous findings to the contrary by Dr. Woodward in January 1995; Dr. Williamson in January 2004; Dr. Roberts in May 2005; and the VA examiner in January 2010. Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999) (the Board can ascribe greater probative weight to one opinion over another, provided that a rational basis is given.) The Veteran is not entitled to service connection based on the finding of a chronic disease, or on the basis of continuity of symptomatology, because the most probative evidence of record-the Veteran's January 1992 separation examination-shows that the Veteran reported that he had no recurrence of the acute eye pain that he had experienced 6 months earlier when sand had entered his eye. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than subsequently reported history); see also 38 C.F.R. § 3.303(b). The preponderance of the evidence is against the award of service connection for a bilateral eye disorder, to include dry eyes, claimed as a left eye condition; it follows that the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). As such, the Veteran's claim is denied. ORDER Service connection for a bilateral eye disorder, to include dry eyes, claimed as a left eye condition, is denied. REMAND Additional development is needed prior to further consideration of the Veteran's claim for entitlement to service connection for a left knee disorder, claimed as DJD. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c)(4) (2008); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995). In evaluating the Veteran's claim, the Board will consider all left knee disorders, whether claimed by the Veteran or diagnosed by clinicians. Brokowski v. Shinseki, 23 Vet. App. 79 (2009) The Veteran's service treatment records show that, in his January 1992 separation examination, he checked a box indicating that he had, or had had, a trick or locked knee. The clinician noted that the Veteran had sprained his left knee two years ago, and complains of occasional pain with prolonged standing or sitting. On clinical evaluation, the Veteran's lower extremities and other musculoskeletal system were normal. In May 2003, the Veteran was provided with his first VA examination of his left knee. The examiner diagnosed him with chronic left knee pain due to DJD changes to his patellofemoral space. An x-ray associated with the examination revealed, according to the radiologist, a slight narrowing of the patellofemoral joint space, and no fracture, dislocation, or joint effusion. No etiological opinion was provided. In his May 2005 notice of disagreement, the Veteran asserted that he injured his left knee playing basketball while stationed in Germany in the spring of 1989, and was diagnosed at that time with a sprained left knee. He further stated that it never completely healed, and has continued to bother him since that time. He also noted that, contrary to a misunderstanding by a May 2003 VA clinician, he had not hurt his left knee by being run over by a truck in his civilian occupation; rather, he has consistently stated that his left knee hurts when he shifts gears while driving a truck, which is his civilian occupation. In April 2009, the Veteran was provided with a second VA examination. The Veteran again reported that he had injured his left knee while playing basketball in service, and that it has gotten progressively worse. The examiner noted that an x-ray associated with the examination revealed small ossific densities within the soft tissues adjacent to the anterior tibial tubercle along the course of the patellar tendon consistent with either accessory ossification centers (the hardening or calcification of soft tissue into a bonelike material) or an old avulsion (trauma-induced) injury. The examiner diagnosed the Veteran with left knee pain, a normal x-ray, and a normal examination. He opined that the Veteran's claimed left knee DJD is not caused by or a result of his active military service, because "there was no documentation to support [an] inservice left knee injury." However, as noted above, the Veteran's service treatment records-specifically, his January 1992 separation examination-show that he did sustain a left knee sprain while in service. Consequently, the Board sought a clarification or new examination of the Veteran's left knee disorder. In the February 2010 VA examination of the Veteran's left knee, the examiner opined that the Veteran's left knee disorder was at least as likely as not incurred or permanently aggravated by military service. The examiner explained that the Veteran "answered yes to [having a] knee strain in [his] 1992 [in service] exam[,] commenting that [a] strain [had] occurred 2 years prior[.] [The] examiner at that time indicated that [the] exam was normal, however there were no radiologic studies to support or disclaim [his] diagnosis, therefore it is the examiner's opinion that it is [at] least as likely as not (50/50) that [the] possible small fissure or cartilage defect detected on MRI [magnetic resonance imaging test] of [his] left knee was caused by or a result [of] military service." The February 2010 VA examiner further found that "there is no evidence to support [a] diagnosis of DJD." The Board apprehends and accepts the VA examiner's explanation that the absence of radiologic studies at separation from service renders the finding of normalcy at that time insufficient to overcome the Veteran's report of a knee strain at separation, especially in light of subsequent findings of a "possible small fissure or cartilage defect detected on MRI." However, the Board requires that the VA examiner provide a more definitive diagnosis of the Veteran's left knee disorder, because service connection for a "possible" disorder cannot be granted. Bloom v. West, 12 Vet. App. 185 (1999) (opinions consisting of speculation or uncertainty are inadequate for establishing service connection.) On remand, the claims file should be returned to the February 2010 VA examiner, and that examiner should provide a more definitive diagnosis of the Veteran's left knee disorder. Specifically, she should determine whether the disorder is a small fissure, a cartilage defect, both, or neither. If the examiner determines that the Veteran's left knee disorder is best described as neither of these possible diagnoses, she should provide a new opinion as to whether it is at least as likely as not that the Veteran's left knee disorder was caused or aggravated during or as a result of his service. A new examination is not required unless deemed so by the examiner. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum opinion, from the February 2010 VA examiner or another appropriate clinician, which addresses the following medical questions. The examiner should review the claims file, and note this review in the report. A new examination is not required, unless deemed so by the examiner. The examiner should provide an opinion as to the following: a. Whether the Veteran's left knee disorder is a small fissure, a cartilage defect, both, or neither. b. If the examiner determines that the Veteran's left knee disorder is best described as neither of these possible diagnoses, she should provide a new opinion as to whether it is at least as likely as not that the Veteran's left knee disorder was caused or aggravated during or as a result of his service. 2. After completion of the above, the AOJ should readjudicate the claim. If any determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case and afforded an opportunity to respond before the case is returned to the Board for further review. No action by the Veteran is required until he receives further notice. The Veteran and his representative have the right to submit additional evidence and argument on the matter 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 Supp. 2010). ______________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs