Citation Nr: 1302249 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 09-16 882 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The appellant's sole period of active service was active duty for training from July 1957 to January 1958, with additional service in the Reserves. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the benefit sought on appeal. 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 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 The appellant seeks entitlement to service connection for a right knee disability on either a direct basis or on the basis of aggravation. He contends that his in-service injury to the right knee caused his current disability, or that he had a preexisting right knee disability that was permanently aggravated as a result of his military service. After a thorough review of the appellant's claims file, the Board has determined that additional development is necessary prior to the adjudication of these claims. The appellant's July 1957 physical examination at enlistment noted that prior to service he had cartilage removed in his right knee. It occurred in 1956, but the appellant reported no complications, and the examiner opined that it was not considered disabling. During service, the appellant was treated for a contusion of the right knee after he was struck in the right knee with a pugil stick. At that time he had swelling of the knee, but did not recall twisting his knee. The appellant reported that he underwent a medial meniscectomy on the right knee one year prior. The treating professional indicated that he believed the appellant had a minimal medial collateral ligament weakness that existed prior to entitlement. X-rays taken revealed Pelligrini's disease of the right knee with an arthritic spur of the posterior surface of the right patella. Service connection is granted for disability resulting from personal injury suffered or disease contracted in the line of duty "in the active military, naval, or air service." 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). The term "active military, naval, or air service" means active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). It is important to note that certain diseases, to include arthritis, generally may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The presumption pertaining to chronic diseases under 38 U.S.C.A. § 1112, however, does not apply to ACDUTRA or INACDUTRA service. Smith v. Shinseki, 24 Vet. App. 40, 46-47 (2010); see also Acciola v. Peake, 22 Vet. App. 320 (2008); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Nor does the presumption of sound condition at entrance into service or presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service apply to periods of ACDUTRA or INACDUTRA. See Smith, 24 Vet. App. at 45. The appellant has been most recently diagnosed as having severe arthritis of the right knee, with chondrocalcinosis. The appellant has not, however, been afforded a VA examination to determine the etiology of his right knee disability. It is important to note that VA's duty to assist also includes a duty to provide an appellant with a proper medical examination or opinion when warranted. In this respect, the Board notes that in the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations that would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. On review of the evidence of record, the Board finds that the low threshold described in McLendon is met, and the appellant should be afforded a VA examination to determine whether his current right knee disability was caused by an injury or disease incurred during a period of active duty or ACDUTRA, or an injury during INACDUTRA. Additionally, in an October 2007 letter to VA, the appellant indicated that he served in as a Marine Corps Reservist. While attempting to retrieve his service treatment records from his Reserve unit, he was told that the unit in which he served is no longer active and his records were sent to the National Personnel Records Center (NPRC). In October 2007, the RO only attempted to retrieve the appellant's service treatment records from July 1957 to January 1958. Thus, the Board finds that upon remand attempts should be made to obtain any outstanding treatment records from the appellant's service in the Reserves. Accordingly, the case is REMANDED for the following action: (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. Obtain copies of any outstanding service treatment records from the appellant's period of service in the Reserves. Attempts to retrieve these records should be made from any source necessary, including the National Personnel Records Center (NPRC), and associate them with the claims folder. If these records are found to be unavailable, this should be specifically noted in the claims file. 2. After the above evidence is obtained, to the extent available, schedule the appellant for appropriate VA examination for his right knee. The claims file, and any pertinent evidence in Virtual VA, should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, the examiner should render an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any currently diagnosed right knee disability was caused by an injury incurred during a period of active service or ACDUTRA, or due to an injury sustained during a period of inactive duty training. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinions provided. 3. After the above is complete, readjudicate the appellant's claim. If the claim remains denied, issue a supplemental statement of the case (SSOC) to the appellant and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is otherwise notified but he 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). _________________________________________________ MICHAEL LANE 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).