Citation Nr: 1235546 Decision Date: 10/15/12 Archive Date: 10/23/12 DOCKET NO. 10-09 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Jan Dils, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1974 to April 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO). In August 2012 a Travel Board hearing was held before the undersigned; a transcript of the hearing is in the claims file. Also as an initial matter, the Board notes that it has reviewed not only the Veteran's physical claims file, but also the "Virtual VA" system. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if any action on his part is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) and the regulations implementing it apply in the instant case. While the notice provisions of the VCAA appear to be satisfied, the Board is of the opinion that further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to his claim. See 38 C.F.R. § 3.159 (2011). The Veteran contends that his current right knee disability was caused by his active service, to include a right knee injury therein. The Veteran was afforded a VA examination in June 2009; however, a review of the examination report found it to be inadequate for rating purposes. Specifically, the examiner opined that the Veteran's right knee disability is unrelated to his active service, to include as due to the right knee injury therein. The opinion is based largely on the fact that there is no evidence that the Veteran sought treatment for his right knee prior to 2002. However, it does not appear that the examiner considered the Veteran's accounts of postservice continuity of symptoms. The Veteran is competent to report when he first experienced right knee problems and that they have continued since service. Furthermore, in a June 2012 Dr. V.B., an orthopedic surgeon at the Bay Pines VA Medical Center (VAMC) (who performed the Veteran's March 2009 right total knee arthroplasty) opines that the Veteran's current right knee disability is related to his active service. However, Dr. V.B. did not explain the rationale for the opinion; therefore, it cannot be weighed against medical opinion evidence to the contrary. At the August 2012 Travel Board hearing the Veteran's attorney requested that the Board undertake development requesting Dr. V.B. to explain the rationale for the opinion. As Dr. V.B. is a VA employee, has familiarity with the Veteran's situation, and has not been averse to providing an opinion addressing the medical questions raised in this case, the Board finds the attorney's request reasonable. Finally, the Board notes that at his August 2012 Travel Board hearing, the Veteran related that he sought treatment for right knee pain shortly after his separation from service and was told that he had arthritis. Records of such treatment are not associated with the claims file. Inasmuch as they would be pertinent (perhaps critical) evidence in the matter at hand, they must be sought. The Board is aware that given the length of the intervening period the likelihood that the records will be located and secured is not great; nonetheless, they must be sought Accordingly, the case is REMANDED for the following: 1. The RO should ask the Veteran to identify the provider he reportedly saw for his knee pain shortly after his separation from service (and to provide releases for any existing records of such treatment). The RO should secure for the record copies of the complete clinical records from the private providers identified, and also secure for the record any updated records (those not already in the claims file) of any VA evaluation or treatment the Veteran received for right knee disability 2. The RO should then arrange for the Veteran's claims file to be forwarded to Dr. V.B. at the Bay Pines VAMC for review and an addendum opinion explaining the rationale for the opinion offered in the June 2012 letter (i.e., that the Veteran's right knee disability is related to his military service). If the requested rationale cannot be given without the Veteran being examined, or if Dr. V.B. is unavailable, arrangements should be made for the Veteran to be reexamined by an orthopedist. The examiner should note that the Veteran's accounts of postservice continuity of symptoms are considered credible. After examination and interview of the Veteran, and review of the claims file, the consulting orthopedist should express an opinion as to the likely etiology of the Veteran's current right knee disability, and specifically whether it is at least as likely as not (a 50 percent or better probability) that the current right knee disability is related to the Veteran's active service, to include as due to a right knee injury therein. The examiner must explain the rationale for the opinion. 3. The RO should review the record and then re-adjudicate the claim of service connection for a right knee disability. If it remains denied, the RO should issue an appropriate supplemental statement of the case, and afford the Veteran and his attorney the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate consideration. The appellant has 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 for additional development or other appropriate action must be handled in an expeditious manner. _________________________________________________ George R. Senyk 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) (2011).