Citation Nr: 1301416 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 06-35 454 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Eric A. Gang, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from June 1987 to June 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in March 2009. A transcript of the hearing is in the Veteran's file. In March 2009, the Board remanded the case for further development, which has been completed. In an April 2010 decision, the Board denied entitlement to service connection for a bilateral knee and a bilateral foot disability. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2012 Memorandum Decision, the Court vacated the Board's decision with respect to the issue of entitlement to service connection for a bilateral knee disability, and remanded that matter for further consideration. The Court determined that the Veteran had expressly abandoned his appeal on the issue of entitlement to service connection for a bilateral foot disability. The issues have been recharacterized to comport with the evidence of record. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for a disability of the right and left knees. In his Notice of Disagreement, and his March 2009 hearing testimony, he reported that his knees began to hurt during service because he had to climb steep ladders and stairways on his ship; carry heavy loads to his work sites; and jump off ladders in order to enter various compartments throughout his ship. He stated that he often fell off of those ladders. He testified that he did not receive treatment for his knees during service, but that he has had knee pain since service. He also testified that during service he was assigned to "a fat boy's program" and was told that his knee problems were caused by his weight. His testimony is credible. A VA examination was conducted in June 2009, and an examiner provided a diagnosis of tricompartmental degenerative findings, bilateral knees. The examiner opined that this finding is not related to service. The rationale was that the Veteran weighed 200 pounds at the time of discharge and presently weighs 352 pounds with uncontrolled diabetes. As noted in the Court Memorandum decision, the June 2009 examination report contains two factual errors. First, service treatment records show the Veteran actually weighed 240 pounds at discharge, as opposed to 200 pounds, and he was described as being obese. Second, the examiner stated the knee pain began in 2009, when the Veteran reports it actually began in service. It is also significant that the VA opinion failed to include any discussion of the Veteran's reported in-service activities and in-service weight gain, which he specifically contends contributed to the development of his current knee disabilities. For all of these reasons, the June 2009 VA examination is inadequate and a new examination must be provided. In a November 2012 letter, a private physician indicated that a June 2010 VA MRI report shows a complex tear of the lateral meniscus, right knee. He stated 'this injury' occurred while in service. He further stated that the lateral tear was not directly caused by the Veteran's obesity, but was aggravated by it. The new VA examination must include consideration and discussion of this medical opinion. Finally, the RO must contact the Veteran and ask that he identify any additional, pertinent VA and non-VA treatment records that are outstanding. Any additional, pertinent, VA treatment records must then either be made accessible on Virtual VA or be printed and added to the file. See Bell v. Derwinski, 2 Vet. App. 611 (1992); 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names and contact information for all private treatment received for the disabilities at issue. Then, obtain copies of all such records not already of record, including any pertinent VA treatment records dated since June 2010. Any negative response must be in writing and associated with the claims file. 2. Schedule the Veteran for a VA examination by an appropriate medical professional. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any current right and/or left knee disability diagnosed is related to service. The opinion and rationale must include consideration and discussion of the Veteran's competent report of his in-service physical activities and weight gain, and the impact of both factors on his knees; his reported in-service knee symptoms with continuity thereafter; and the November 2012 private medical opinion. In discussing the significance, if any, of the Veteran's obesity on the development of his current right and knee disabilities, the examiner is to clearly distinguish the in-service weight gain from his post-service weight gain. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the issues on appeal. If either benefit remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ RONALD W. SCHOLZ 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).