Citation Nr: 1301751 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 10-07 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran served on active duty from September 1959 to March 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2008 and March 2009 rating decisions of the Winston-Salem, North Carolina Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2012. A transcript of the hearing is of record. 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 Veteran if further action is required. REMAND The Veteran asserts that his left knee degenerative joint disease is a result of repetitive movement of "pushing down on the clutch" of heavy equipment while in service for over 10 years, as indicated on pages 2 and 3 of the hearing transcript. (See also July 2008 Radiology Transcription Report). His DD Form 214 reflects that he was a motor vehicle dispatcher and vehicle operations supervisor. The Veteran's lay statements are sufficient to establish that he had knee pain during service as it is a symptom that is readily observable. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, whether the Veteran's purported knee pain in service constituted arthritis of the knee or is causally related to the later diagnosis of arthritis is a question requiring medical expertise. Barr, 21 Vet. App. at 307 (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions). The applicable law requires VA to deem an examination necessary to adjudicate a claim for service connection when there is competent evidence that a claimant has a current disability, or persistent or recurrent symptoms of disability; the information or evidence indicates that the disability or symptoms may be associated with the claimant's active service; but, the file does not contain sufficient medical evidence for VA to make a decision. See 38 U.S.C.A. § 5103A(d)(2); McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Court cautioned in McClendon that an "absence of actual evidence is not substantive negative evidence." Id. at 85. It further noted that an indication that a current disability "may" be associated with service is a low threshold. Id. at 83. In light of the Veteran's assertion of continuity of knee pain since service, as well as the current findings, and some question as to whether the claimed disability is related to the Veteran's military service, a remand for VA examination is necessary. 38 U.S.C.A. § 5103A. Finally, to ensure completeness of the record, the RO should obtain all outstanding VA treatment records. Efforts should also be undertaken to ensure that the Veteran's complete treatment records from Murphy Medical Center have been obtained. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's complete treatment records from the Asheville VA treatment facility dated prior to August 30, 2005 and since October 15, 2009. 2. Make arrangements to obtain the Veteran's complete treatment records from Murphy Medical Center (to include from Dr. Stephen Zimmer or Zimmerman), dated since January 2003. 3. Thereafter, schedule the Veteran for a VA orthopedic examination of his left knee. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. Any indicated tests should be accomplished. The examiner is requested to provide a diagnosis of any left knee disability found to be present (i.e., arthritis). The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed left knee disability had its clinical onset during active service or is related to any in-service disease, event, or injury. In providing this opinion, the examiner should consider the Veteran's report of continuing left knee symptoms since service, as well as his description of his in-service duties that required repetitive movement of "pushing down on the clutch" of heavy equipment for over 10 years. The examiner must provide a comprehensive report including complete explanations for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. After the requested examination has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for corrective action. 5. Finally, after undertaking any other development deemed appropriate, re-adjudicate the issue on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with an SSOC and afford them an opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ P.M. DILORENZO 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).