Citation Nr: 1300172 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 10-45 155 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a right knee condition, to include as secondary to service-connected left knee condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1998, to February 1999, and from February 2004, to January 2005. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (the RO). By that rating decision, the RO denied service connection for a right knee condition. The Veteran appealed that decision and this issue is currently before the Board. In May 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of these proceedings has been associated with the claims file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Remand is required 1) to provide notice under the Veterans Claims Assistance Act of 2000 (VCAA), 2) to attempt to obtain any private treatment records, and 3) to obtain an examination. First, the VCAA requires that the Veteran be provided with appropriate notice regarding his right knee claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The Veteran was provided with VCAA notification for his left knee on December 2009. However, no such notice has yet been provided with regard to the right knee or the theory of secondary service connection to the service-connected left knee. Accordingly, remand is required to provide appropriate VCAA notice. Second, VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §§ 3.159(c) (2012). The duty to assist includes obtaining records in the custody of a Federal department or agency, including VA medical records, Social Security Administration (SSA) records, and making reasonable efforts to obtain private medical records. 38 C.F.R. § 3.159(c)(1), (2); Golz v. Shinseki, 590 F.3d 1317, 1321-23 (Fed. Cir. 2010). Here, the Veteran testified at his May 2012 Board hearing that he intended to seek private treatment for his right knee. If the Veteran has sought out such treatment, then those records should be obtained, as they would be highly relevant to the issue at hand. Third, remand is required to provide the Veteran with a VA examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence 'indicates' that there 'may' be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Furthermore, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). To establish service connection on a secondary basis, three elements must be met: (1) current disability; (2) service-connected disability; and (3) nexus between current disability and service-connected disability. Wallin v. West, 11 Vet. App. 509 (1998). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Here, the Veteran has provided testimony at his May 2012 Board hearing that he experiences pain, swelling, and inflammation in his right knee. The Veteran further alleges that these symptoms began after service, about three or four years ago, and that they have been continuous. Because the Veteran's statements are in regard to the observable symptoms of his condition and do not require expert medical knowledge, such statements are found to be competent. Further, there is nothing significant in the record that directly contradicts these statements, so they are also found to be credible. As such, the Board finds that both a current disability and a separate service-connected disability have been identified. Therefore, the issue turns upon the finding of a nexus between these two disabilities. McLendon, 20 Vet. App. at 83-86. In this regard, a VA examination is necessary in order to make a determination regarding such a nexus. Service connection is in effect for left biceps femoris tendonopathy (hamstring tendonopathy), evaluated as 10 percent disabling. Accordingly, the case is REMANDED for the following action: 1. Provide appropriate VCAA notice to the Veteran regarding his right knee condition claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.310, 3.326(a) (2012). 2. Contact the Veteran and request that he identify the name, date, and location of any treatment he has sought for his right knee. Provide an authorization form for the release of such records and inform him that he may submit any records in his possession. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate in- person examination to determine the etiology and severity of the Veteran's right knee disorder. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner is requested to provide an opinion, in light of the evidence in the claims file, as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a right knee disability that had its onset in service or is otherwise related to service, or, in the alternative, was caused or aggravated by (a permanent increase in severity beyond normal progression) the service-connected left knee condition. The Veteran's lay statements regarding onset and continuity of symptoms of pain must also be taken into consideration. An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). 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. 2012). _________________________________________________ WAYNE M. BRAEUER 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) (2012).