Citation Nr: 1300728 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 09-12 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a bilateral knee disorder. 2. Entitlement to service connection for a back disorder, to include as secondary to a bilateral knee disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran & A.R. ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from April 1956 to June 1959. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In September 2007, the Veteran filed a notice of disagreement, and in March 2009, the RO promulgated a Statement of the Case. In April 2009, the Veteran filed a substantive appeal (VA Form 9). The Veteran now resides in Georgia, so the matter is now handled by the RO in Atlanta, Georgia. In October 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is associated with the claims file. A review of Virtual VA revealed additional VA treatment records, including treatment of the bilateral knees. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to assist the claimant in obtaining the evidence needed to substantiate a claim. 38 U.S.C.A. § 5107(a), 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran is seeking entitlement to service connection for a bilateral knee disorder and a back disorder. He asserts he fell off a truck that was hit by a plane, injuring his knees and back, during service. At the October 2011 hearing, the Veteran elaborated that due to the plane's impact, he fell from the back of a truck, landed on his knees, braced the fall with his hands and sustained some of the impact from the fall to his back. He recalled that, at the time of the fall, he noticed a little pain, swelling, bruises and knots on his knees and hands from the fall. He testified to the effect that he did not consider his symptoms of pain to be severe, explaining that he would have went to a doctor if the pain had continued. He testified that he neither reported nor received treatment for this injury during service. See BVA Hearing Transcript, pp. 3-16 (Oct. 2011). The claims were remanded in April 2012 to afford the Veteran a VA examination and to obtain a medical opinion regarding the nature and etiology of his claimed conditions. In June 2012, the Veteran was afforded a VA examination. The examiner opined that the Veteran's back and knee disorders were less likely than not incurred in or caused by service, and explained that the service records showed no evidence of a back or knee injury or problem and that the Veteran's separation examination showed no indication of any musculoskeletal problems. As such, the examiner should be asked to provide an addendum opinion which considers the Veteran's competent statement describing the circumstances of his fall from the truck and the injury and the types of symptoms he sustained to his knees and back from that fall. Therefore, the Board finds that a remand is required in order to obtain a clarifying medical opinion that takes into consideration the Veteran's lay statements as noted above. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The AMC/RO must request an addendum opinion to the June 2012 examination, preferably by the same VA examiner who conducted the June 2012 examination of the knees and back (or if unavailable from appropriately qualified medical personnel). The claims folder must be made available to the examiner for review. The examiner is asked to review all pertinent records associated with the claims file, including the service treatment records, and offer comments and an opinion as to whether any disability of (a) the right knee, (b) the left knee, and (c) the back that the Veteran now has is at least as likely as not (i.e., a 50 percent or greater probability) related to an in-service history of injury, given the circumstances of the fall and the injury and the types of symptoms he sustained to his knees and back at the time of the fall, as described by the Veteran. Please explain in detail the underlying reasoning for your opinion. (A discussion of the facts and medical principles involved would be of considerable assistance to the Board). The examiner should be asked whether there was any medical reason to accept or reject the proposition that the Veteran sustained an injury during service, as described by the Veteran, which could have lead to the current condition(s) that the Veteran now has of the right knee, left knee, and back. Please explain in detail the underlying reasoning for your opinion. (A discussion of the facts and medical principles involved would be of considerable assistance to the Board). The examiner should express an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any condition that the Veteran now has of the back was caused, or aggravated (permanently worsened beyond normal progression), by any condition(s) that the Veteran now has of the right knee and the left knee. Please explain in detail the underlying reasoning for your opinion. (A discussion of the facts and medical principles involved would be of considerable assistance to the Board). If the June 2012 VA examiner is unavailable, and the reviewing examiner is unable to provide an addendum opinion without another examination of the Veteran, the AMC/RO should arrange for the Veteran to undergo a VA examination, by appropriately qualified medical personnel, to obtain an opinion responsive to the question and comments noted above. The entire claims file and a complete copy of this REMAND must be made available to and reviewed by the new examiner in conjunction with the study of this case and this fact should be acknowledged in the report. All testing deemed necessary by the examiner should be performed and the results reported in detail. A complete rationale (which discusses the Veteran's medical history, the competent lay statement (of the circumstances of his fall and the injury and types of symptoms he sustained to his knees and back at the time of the fall, as described by the Veteran), and the salient medical facts, and which explains in detail why the answer is being provided), should be given for all opinions and conclusions expressed. 2. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran 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). _________________________________________________ DEBORAH W. SINGLETON 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).