Citation Nr: 1302452 Decision Date: 01/23/13 Archive Date: 01/31/13 DOCKET NO. 09-14 577 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUE Entitlement to service connection for bilateral knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD A. Novak, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1958 to July 1960. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2008 rating decision in which the RO denied service connection for a bilateral knee disability due to arthritis. In September 2008, the Veteran filed a notice of disagreement (NOD. A statement of the case (SOC) was issued in April 2009, and the Veteran filed a substantive appeal (VA Form 9) that same month. In September 2009, the Veteran and his wife testified during a hearing before a Decision Review Officer at the RO. Following the hearing and the submission of additional evidence, a supplemental SOC (SSOC) was issued in February 2010. For the reasons discussed below, the matters on appeal are being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that the Veteran is afforded due process, and that there is a complete record upon which to decide the claim on appeal. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In general, to establish service connection the evidence must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). In the present case, the Veteran has shown that he has a current knee disability. As a result of osteoarthritis of his knees, he underwent bilateral knee surgery in February 2000. He reported having had the knee pain for at least fifteen years before the surgery, and that he did not respond well to injections. He has asserted that his knee condition prevents him from doing many of his normal activities of daily living. He is receiving disability benefits from the Social Security Administration for his bilateral knee disability. During his RO hearing, the Veteran testified that the rigorous training operations of his infantry service were the initial cause of his bilateral knee disability. Reportedly, he had to march and jump off tanks and low-altitude helicopters while carrying a machine gun. He participated in this training about three or four times during service. He had to jump in and out of trucks daily while carrying a forty pound pack. He expressed his belief that his post-service employment at a machine shop aggravated his knee problems, but his cartilage had been gradually worn down from the stresses of his in-service training. He indicated that he first received treatment for his knees about five years following service. Also during the hearing, the Veteran's wife testified that he had had knee pain since they were married, shortly after his separation from military service. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4)(i) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83 Although the evidence shows that the Veteran has a current knee disability, he has asserted activities during service that put stress on his knees, and he and his wife and testified as to continuing knee symptoms since service, there is no medical opinion addressing the relationship, if any, between current disability and service. Under the circumstances of this case, the Board finds that such an opinion is needed to resolve the claim for service connection. Id. Hence, the RO should arrange for the Veteran to undergo VA examination of his knees, by an appropriate physician, at a VA medical facility. The Veteran is hereby advised that failure to report for the scheduled examination, without good cause, may result in denial of the claim for service connection (as the original claim will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo VA examination, the RO should undertake appropriate action to obtain all outstanding, pertinent records. The claims file (to include the paperless, electronic (Virtual VA) file) does not contain any medical records after the Veteran's Social Security Disability records dated through August 2001. On remand, the RO will be requested to send a letter to the Veteran asking him to identify the practitioners that he has seen or the facilities he has visited for treatment related to his bilateral knee condition. If such information and any necessary authorization is provided, the RO will request all available records or document their unavailability in the claims file. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following actions: 1. Send the Veteran and his representative a letter requesting that the Veteran provide the names and contact information of any treatment provider that he has seen for his bilateral knee disability since August 2001. 2. Request records from any provider identified by the Veteran. If these records are unavailable or the search for these records yields negative results and further attempts to obtain these records would be futile, then this must be clearly documented in the claims file and the Veteran appropriately notified. See 38 C.F.R. § 3.159(c)(1)-(e)(1). 3. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA orthopedic examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the physician designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies (to include x-rays, if necessary) should be accomplished, and all clinical findings should be reported in detail. The physician should clearly identify all current disability(ies) of the knees. Then, with respect to each such diagnosed disability, the physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability that the disability is the result of disease or injury incurred in or aggravated by service. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 4. If the Veteran fails to report to the examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the matters on appeal in light of all pertinent evidence and legal authority. 7. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The appellant need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).