Citation Nr: 1237247 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 04-31 975A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether there is new and material evidence to reopen a claim for service connection for a right knee disorder. 2. Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1967 to March 1970. This appeal to the Board of Veterans' Appeals (Board) arose from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Initially, there were two claims on appeal, for service connection for a right knee disorder and a skin disorder, claimed as chloracne. An August 2003 decision determined that new and material evidence had not been submitted to reopen the Veteran's previously denied claim for service connection for a right knee disorder, including degenerative joint disease. And a November 2004 decision denied his claim for service connection for chloracne. In support for his claims, the Veteran testified at a hearing before a local Decision Review Officer (DRO) in September 2006. In June 2007, he testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. The Board subsequently issued a decision in October 2009 granting service connection for skin disorders but determined that new and material evidence had not been received to reopen the claim for service connection for the right knee disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court/CAVC), but only to the extent it had denied his petition to reopen the claim for service connection for the right knee disorder. In a December 2010 order, granting a joint motion, the Court partially vacated the Board's decision to the extent it had denied this claim. The Court remanded this claim to the Board for further development and readjudication in compliance with directives specified. To comply with the Court's order, the Board remanded this remaining claim in April 2011 to the RO via the Appeals Management Center (AMC) in Washington, DC. As previously mentioned in that April 2011 Board remand, the RO received additional claims for service connection for a right shoulder disorder and for a total disability rating based on individual unemployability (TDIU) in September 2006. In response, the RO sent a Veterans Claims Assistance Act (VCAA) notification letter in February 2007; however, the U. S. Postal Service returned the letter as undeliverable. An April 2007 deferred rating action indicates the Veteran's address had changed, but it does not appear the RO resultantly attempted to re-issue the notification letter to his new address. Nor does it appear he withdrew these other claims. These claims have been raised by the record, but have not been initially adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). Therefore, the Board still does not have jurisdiction to consider them, so they are referred to the RO for appropriate development and consideration. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO). In this decision, because there is new and material evidence, the Board is reopening the claim for service connection for a right knee disorder. Since, however, this claim requires still further development before being readjudicated on its underlying merits, the Board is then remanding this claim to the RO via the AMC. FINDINGS OF FACT 1. In July 1985 the Board denied the Veteran's claim for service connection for a right knee disorder, and more recently in September 1997 the Board also denied his petition to reopen this claim. He did not appeal that more recent decision. 2. That decision determined service connection was not warranted because there was no evidence suggesting a link between his then current right knee disorder and his military service. 3. Other evidence since submitted, however, is not cumulative or redundant of the evidence on file at the time of that earlier decision and raises a reasonable possibility of substantiating this claim for service connection for a right knee disorder. CONCLUSIONS OF LAW 1. The Board's September 1997 decision denying the Veteran's petition to reopen his claim for service connection for a right knee disorder is final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §§ 20.200, 20.1100, 20.1104 (2011). 2. But there is new and material evidence since that decision to reopen this claim. 38 U.S.C.A. §§ 5107, 5108; 38 C.F.R. §§ 3.102, 3.156, 3.159 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist Since in this decision the Board is reopening the claim for a right knee disorder because there is new and material evidence, the Board need not determine whether there has been compliance with the notice and duty to assist provisions of the VCAA, at least insofar as apprising the Veteran of the specific reasons for the prior denial of this claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006); VA Gen. Couns. Memo., para. 2, 3 (June 14, 2006). This claim is being reopened, regardless. He nevertheless was provided this Kent notice in August 2007, May and June 2011, and most recently in March 2012, following and as a result of the prior August 2007 and April 2011 Board remands. Moreover, the Board will be in a better position to determine whether there has been compliance with the remaining duty to notify and assist provisions of the VCAA once the additional development of this claim is completed following the Board's additional remand of this claim. So a determination concerning that is being temporarily deferred. II. Whether there is New and Material Evidence to Reopen this Claim for Service Connection for a Right Knee Disorder The RO originally considered and denied the Veteran's claim for service connection for a right knee disorder in a June 1984 rating decision, and in a July 1985 decision the Board affirmed the RO's denial of this claim. When a rating decision issued by the RO denying a claim is affirmed by the Board on appeal, the Board's decision subsumes the RO's denial. See 38 C.F.R. § 20.1104. Several years later the Veteran again filed a claim for service connection for a right knee disorder and, in November 1993, the RO again denied his claim. In June 1994 the RO clarified that his petition to reopen this claim was denied because he had not submitted new and material evidence since the Board's July 1985 decision previously considering and denying this claim. He appealed the RO's June 1994 decision to the Board, and in September 1997 the Board affirmed the RO's denial of his petition to reopen this claim, also concluding there was not new and material evidence. He did not appeal the Board's decision, so it is final and binding on him based on the evidence then of record. 38 C.F.R. § 20.1100. In April 2003, he filed another petition to reopen this claim. However, since the Board has previously considered and denied this claim and he did not timely appeal the decision, the first inquiry is whether new and material evidence has been submitted to reopen this claim. 38 C.F.R. § 3.156(a). The August 2003 RO decision at issue in this appeal denied the petition to reopen this claim - concluding there was not new and material evidence because there still was no evidence indicating his right knee disorder, diagnosed as degenerative joint disease (DJD, i.e., arthritis), began during or was caused by his military service, including manifesting within one year of his separation from service. Regardless of what the RO determined in regards to whether there is new and material evidence to reopen this claim, however, so, too, must the Board make this threshold preliminary determination, before proceeding further, because this initial determination affects the Board's jurisdiction to adjudicate this claim on its underlying merits, i.e., on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen previously and finally denied claims); and VAOPGCPREC 05-92 (March 4, 1992). See also Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant as further consideration of the claim is neither required nor permitted. Butler v. Brown, 9 Vet. App. 167, 171 (1996). If, on the other hand, there is new and material evidence, then the claim must be reopened and the former disposition reconsidered. 38 U.S.C.A. § 5108. When determining whether a claim should be reopened, the Board performs a two-step analysis. The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new and material." See 38 U.S.C.A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). According to VA regulation, "new" means existing evidence not previously submitted to agency decision makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Second, if VA determines the evidence is new and material, it may then proceed to evaluate the merits of the claim on the basis of all the evidence of record, but only after ensuring the duty to assist has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000). This second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, so irrespective of whether a prior decision on the underlying merits or, instead, a prior petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In determining whether evidence is new and material, the credibility of the evidence in question is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). This presumption only applies when making a determination as to whether the evidence is new and material. It does not apply when making a determination as to the ultimate credibility and weight of the evidence as it relates to the merits of the claim. Essentially, the presumption of credibility "dissolves" once the claim is reopened and decided on the merits. See, too, Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). In Shade v. Shinseki, 24 Vet. App. 110, 116 (2010), the Court interpreted the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." This phrase, "raises a reasonable possibility of substantiating the claim," does not create a third element for new and material evidence but was intended, instead, to provide guidance to VA adjudicators in determining whether submitted evidence meets the new and material requirements. That is, the Board cannot require the evidence to be new, material, and raise a reasonable possibility of substantiating the claim. In Shade, the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id., at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. In other words, the Court indicated that the post-VCAA version of 38 C.F.R. § 3.156(a) establishes a low threshold for reopening a claim, one that does not require that a claimant submit a medical opinion to reopen a claim. Rather, if there is newly submitted evidence of current disability that in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened. This then triggers VA's duty to assist in providing the claimant with a VA examination. In the prior final and binding September 1997 decision, the Board denied reopening this claim because there was no evidence attributing the Veteran's then currently diagnosed right knee disorder, DJD, to his August 1968 knee injury in service while playing basketball. The Board noted that, after his initial treatment for that injury in service, there were no further complaints, treatment, or diagnoses in service pertaining to his right knee. Additionally, his February 1970 military separation examination did not indicate any problems with his right knee. It was also noted that he had acknowledged having a problem with his leg in 1965, so prior to his service. Since the Board's September 1997 decision, the additional evidence submitted or otherwise obtained includes VA treatment records dating from December 1978 to July 1989; records from Philadelphia Health Center #5, dating from May to December 2000; and Philadelphia VA Medical Center (VAMC) records dating from May 1997 to October 2011. The Veteran also provided a February 2012 statement in support of his claim from Dr. S.P.M., Chief of Rheumatology at the Philadelphia VAMC. As well, the Veteran had a VA compensation examination in June 2012. He additionally provided lay statements in support of his claim during his September 2006 RO and June 2007 Board hearings. His additional medical records merely describe his current condition, and such things as the treatment he has required - including a June 2010 arthroplasty of his right knee, so are immaterial to the issue of service connection and thus insufficient to reopen his claim. See Cox v. Brown, 5 Vet. App. 95 (1993) and Morton v. Principi, 3 Vet. App. 508 (1992) (per curiam). Similarly, the additional lay statements in April and May 2003, as well as his hearing testimony before a local Decision Review Officer (DRO) at the RO in September 2006 and before the undersigned Veterans Law Judge of the Board in June 2007, merely reiterated his arguments that his current right knee disorder is attributable to an injury in service. See Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). See also Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). Indeed, arguments based on what amounts to the same evidence of record at the time of the previous final denial do not constitute the presentation of new and material evidence. Untalan v. Nicholson, 20 Vet. App. 467 (2006). The February 2012 letter from Dr. S.P.M., however, reports a history of an injury followed by medial joint line pain and loss of range of motion and sustained knee effusion that is very sensitive for a high probability of having a meniscal tear. She also stated that subjects who have sustained knee injuries, no matter the cause, have a dramatically increased rate of developing osteoarthritis in the ipsilateral knee. Therefore, according to her, the Veteran was more likely than not at a substantially increased risk for the subsequent development of knee osteoarthritis in his right knee due to his knee injury as described by the August 1968 service treatment record (STR), highly suggesting a meniscal or ligamentous injury. So this doctor associated the current right knee disability with that injury in service. On the other hand, the June 2012 VA compensation examiner concluded that the DJD affecting the Veteran's right knee is less likely than not related to his military service, including to that August 1968 injury, because the February 1970 discharge summary showed no knee disability and no noted abnormalities. Regardless of the June 2012 VA compensation examiner's determination, the February 2012 statement from Dr. S.P.M. provides competent medical evidence of a potential (and likely) relationship or correlation between the Veteran having injured his right knee during his military service, in August 1968, and eventually developing DJD (osteoarthritis) in this knee. And, as explained, the credibility of this additional evidence is presumed - albeit just for the limited purpose of determining whether this evidence is new and material. Justus, 3 Vet. App. 510, 513 (1992). Moreover, as the Court also explained in Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), new evidence is sufficient reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin of the disability at issue, even when this additional evidence is not enough to convince the Board to grant the claim. See also Shade, 24 Vet. App. at 117. This finding of new and material evidence does not mean this claim ultimately will be granted, only that it is deserving of further consideration on its underlying merits. So to this extent, and this extent only, the appeal is being granted subject to the further development of this claim on remand. ORDER New and material evidence having been received, the appeal to reopen the claim of entitlement to service connection for a right knee disorder is granted. REMAND Before readjudicating this claim on its underlying merits, the Board finds that additional development of the evidence is required and, therefore, is remanding this claim to the RO via the AMC. The Veteran, as mentioned, attributes the DJD (osteoarthritis) of his right knee to the injury he sustained to this knee in August 1968 while playing basketball during his military service. However, it was also noted during his service that he had broken his leg in 1965, so prior to beginning his military service, although the exact leg (right versus left) was not specified and it is unclear whether his knee also was injured. Therefore, there is some question as to whether he had sustained a relevant injury prior to service. VA law and regulations provide that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2011). In July 2003, VA's General Counsel issued a precedent opinion holding that in order to rebut the presumption of soundness in 38 U.S.C.A. § 1111, when a condition is not noted at entrance into service, VA must demonstrate by clear and unmistakable evidence both that the disease or injury in question existed prior to service and that it was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The United States Court of Appeals for the Federal Circuit has adopted the General Counsel's position. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The claimant is not required in this circumstance to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. This holding replaced the previous standard under 38 C.F.R. § 3.304(b), which had required that if a condition was not noted at entry but was shown by clear and unmistakable evidence to have existed prior to entry, the burden then shifted to the claimant to show that the condition increased in severity during service. Conversely, if a pre-existing disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, only instead a claim for service-connected aggravation of that disability. And in that case, § 1153 applies and the burden falls on him, not VA, to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (holding that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability). If an increase is shown, the presumption of aggravation may be rebutted only by clear and unmistakable evidence that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a), (b). Independent medical evidence is needed to support a finding that the pre-existing disorder increased in severity during service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). The presumption of aggravation applies where there was a worsening of the disability in service, regardless of whether the degree of worsening was enough to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). Here, the report of the Veteran's August 1966 military entrance examination does not indicate the existence of any right knee disorder or residuals of a broken leg concerning either lower extremity. Therefore, it must be presumed that he entered service in March 1967 in sound physical health, with no preexisting right knee disorder. See 38 U.S.C.A. §§ 1111; 38 C.F.R. § 3.304(b). See also Quirin v. Shinseki, 22 Vet. App. 390, 394, 396 (2009) (holding that the only prerequisite for the presumption of soundness to apply is that the enlistment or entrance examination have been unremarkable ("free and clear") for any pertinent defect or abnormality). VA therefore has to rebut this presumption of soundness with clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by his service. Wagner, 370 F.3d at 1089. See also VAOPGCPREC 3-2003 (July 16, 2003). During his military service, his STRs clearly document the August 1968 injury to his right knee. A preceding July 1967 STR also notes a prior fracture of his right foreleg (an apparent reference to the broken leg before service mentioned). His February 1970 military separation examination, however, was completely benign regarding the injury in service, including in terms of suggesting the Veteran had any residuals (sequelae) or consequent disability. The report of that departing examination reiterates that he had broken his leg in 1965, but does not specify which leg, although, as earlier indicated, the July 1967 STR refers to a fracture of the right foreleg. The right leg apparently then is the leg that was broken/fractured prior to service. Still, including especially because there was no specific mention of injury to the right knee prior to service, it must be determined whether there is the required clear and unmistakable evidence of a pre-existing right knee disorder and, if so, whether there also is the required clear and unmistakable evidence this disorder was not aggravated during or by the Veteran's service beyond the condition's natural progression, including by the injury he sustained to this knee during his service in August 1968. On the other hand, if there was no pre-existing disorder, his current right knee disorder may be directly attributable to his military service and, if he had the DJD (osteoarthritis) to a compensable degree within one year of his discharge in March 1970, so meaning by March 1971, his right knee disorder also alternatively may be presumed to have been incurred in service. Since service, he has received treatment for his knee disorder since the 1980s up through October 2011. Additionally, he submitted a February 2012 letter from Dr. S.P.M., Chief of Rheumatology at Philadelphia VAMC, stating that a history of an injury, followed by medial joint line pain and loss of range of motion and sustained knee effusion is very sensitive for a high probability of having a meniscal tear. This doctor also explained that subjects who have sustained knee injuries, no matter the cause, have a dramatically increased rate of developing osteoarthritis in the ipsilateral knee. Therefore, the Veteran was more likely than not at a substantially increased risk for the subsequent development of knee osteoarthritis in his right knee due to his knee injury as described by his August 1968 STR, highly suggesting a meniscal or ligamentous injury. The June 2012 VA compensation examiner, in comparison, came to a very different conclusion regarding the etiology of the Veteran's right knee disorder. The VA examiner determined the DJD now affecting the Veteran's right knee is less likely than not related to his military service, including the August 1968 injury, because the February 1970 discharge summary showed no knee disability and no noted abnormalities. The logical inference, then, is that had he in fact had right knee disability when separating from service as a result of the injury he had earlier sustained in service, this would have been reported or documented, but it was not, so reason enough, according to this VA compensation examiner, to disassociate the DJD now affecting this knee from that injury in service. Since, however, this examiner did not phrase the opinion in terms of clear and unmistakable evidence sufficient to conclude both that there was pre-existing right knee disability and not aggravation of this pre-existing disability by the Veteran's service, including by his August 1968 injury, this opinion is not a sufficient basis to deny this claim - certainly not given the contrary February 2012 opinion of Dr. S.P.M. The VA compensation examiner's opinion falls short of meeting this evidentiary standard of clear and unmistakable evidence in the two-pronged test for rebutting the presumption of soundness at service entrance by showing pre-existence and no aggravation. The opinion does not satisfy this "onerous" and "very demanding" clear-and-unmistakable-evidence standard. See MacMinagil v. Shinseki, No. 09-1536, 2011 WL 1534512 (Vet. App. April 25, 2011), citing Cotant v. Principi, 17 Vet. App. 116, 131 (2003). In fact, the examiner did not even discuss this possible issue of aggravation of a pre-existing disorder. Only if he had and then, as mentioned, would there be sufficient evidence to rebut the presumption of soundness at entrance into service. Moreover, if instead no pre-existing right knee disability, there needs to be more explanation and rationale as to why it is less likely than not the DJD now affecting this knee was not directly or presumptively incurred in service. As concerning direct service connection, the examiner impermissibly based his negative opinion entirely on the absence of relevant complaints or findings during the Veteran's February 1970 military separation examination. But while it is true this can serve as partial reason for disassociating the current disability from the injury in service, it cannot, as here, serve as the only or sole reason for this. That is to say, the mere absence of evidence, such as this type of documentation in actual contemporaneous medical treatment records (STRs, etc.), does not in and of itself amount to substantive evidence weighing against the claim. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002). The June 2012 VA examiner also did not discuss Dr. S.P.M.'s favorable findings as stated in her supporting February 2012 letter. The Court has held that, once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence ... is essential for a proper appellate decision"). See, too, Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Therefore, it must be clear, from either the examiner's statements or the Board decision, that the examiner has indeed considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis. Daves v. Nicholson, 21 Vet. App. 46, 51 (2007). When the record leaves this issue in doubt, it is the Board's duty to remand for further development. The examiner may also have an obligation to conduct research in the medical literature depending on the evidence in the record at the time of examination. See Wallin v. West, 11 Vet. App. 509, 514 (1998). Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Ask the Veteran whether he has received any additional evaluation or treatment for his right knee disorder since October 2011, either from VA or elsewhere (privately, etc.). If he has, and the records are not already on file, obtain them. If the records identified are not in the custody of a Federal department or agency, then the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(1), whereas subpart (c)(2) controls if they are. So make as many attempts as necessary to comply with this VA regulation, depending on who has custody of the records. Also notify the Veteran if unable to obtain identified records. 38 C.F.R. § 3.159(e)(1). 2. Upon receipt of all additional records, schedule another VA compensation examination for a supplemental medical nexus opinion regarding the etiology of the Veteran's right knee disorder. All necessary diagnostic testing and evaluation should be performed. The examiner is also asked to review the relevant medical and other evidence in the claims file for the pertinent history, including a complete copy of this remand. After a review of the record, to include all relevant medical records and lay statements contained therein, the examiner should offer an opinion responding to the following: (A) Is there clear and unmistakable evidence the Veteran had a right knee disorder prior to beginning his military service? This initial determination should take into account the history of a fracture of his right foreleg before service, including in terms of whether there was injury also to his right knee specifically and consequent disability. (B) If there is clear and unmistakable evidence of a pre-existing right knee disorder, is there also clear and unmistakable evidence this pre-existing disorder was not aggravated during or by his service beyond the condition's natural progression, meaning did not undergo an appreciable increase in the underlying pathology during his service, as opposed to a mere temporary or intermittent flare-up of symptoms? Regarding this determination, the examiner is asked to consider the STRs and report of the August 1968 injury to the right knee. (C) If, conversely, the examiner determines the right knee disorder did not clearly and unmistakably preexist the Veteran's service and/or was not clearly and unmistakably aggravated by his service beyond its natural progression, then an opinion is alternatively needed as to the likelihood (very likely, as likely as not, or unlikely) this claimed condition incepted during his service from March 1967 to March 1970, or, since involving DJD (osteoarthritis), within one year of his discharge from service, so meaning by March 1971, or is otherwise etiologically related or attributable to his service and, in particular, to the August 1968 injury. Note: If at all possible, the VA examiner should try and provide definitive comment on these determinative issues of causation and aggravation. If the examiner cannot provide an opinion without resorting to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis of the opinion must be provided or apparent upon a review of the record. In other words, merely saying he/she cannot comment will not suffice. 3. Ensure the medical opinion is responsive to the questions posed, both insofar as initially addressing whether there was pre-existing disability and aggravation of this disability and, if determined instead there was not, the remaining possibilities of direct and presumptive service connection. 4. Then readjudicate this claim on its underlying merits in light of the additional evidence. If this claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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. 2011). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs