Citation Nr: 1304582 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 08-16 706 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for degenerative joint disease of the left knee. 2. Entitlement to service connection for degenerative joint disease of the right knee. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD T.S. Willie, Counsel INTRODUCTION The Veteran had active service from June 1965 to June 1968. This matter comes to the Board of Veterans' Appeals (Board) from a rating decision of the Atlanta, Georgia Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans' Law Judge in September 2012. A transcript of that hearing is of record. The issues of entitlement to service connection for neck, left arm, left shoulder and left hand disabilities have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 Veteran appeals the denial of service connection for degenerative joint disease of the right and left knees. According to the Veteran, he had knee problems in service and his current knee symptoms are similar to those that he experienced while on active duty. The Veteran asserts that while on active duty he served as a paratrooper and did 33 jumps during service. In a May 2008 statement, Dr. C opined that the Veteran could possibly have degenerative joint disease related to his active duty and aggravated by the rigors and stresses of training and overuse of his knees. Dr. C related that the Veteran served as a paratrooper who jumped out of planes for six years and landing on the ground and that his symptoms could definitely be related to his active service. The Veteran has not been afforded a VA examination/opinion in relation to his claim. Although Dr. C issued an opinion on this matter, the Board notes that the opinion is speculative at best given his use of the words "possibly" and "could." See Obert v. Brown, 5 Vet. App. 30 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). In light of the Veteran's assertions of in service manifestations and continuity of symptomatology, a VA examination is warranted to determine if his current bilateral knee disability is attributable to service. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2012). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the record any recent VA treatment records since April 2012. Also contact the Veteran and request that he identify any records pertaining to treatment for his knees that have not been submitted. Any records obtained must be associated with the Veteran's claims folder. If the RO cannot locate any identified record, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must be given an opportunity to respond. 2. Thereafter, schedule the Veteran for a VA orthopedic examination to determine the nature and extent of any diagnosed knee disability. After review of the entire claims folder and Virtual VA, the physician examiner must opine whether it is at least as likely as not (i.e., probability of 50 percent) that any diagnosed knee disability is related to service, to include service with airborne forces. The examiner must provide a comprehensive report including complete rationale for all conclusions reached. 3. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examining physician documented their consideration of Virtual VA. If any report is deficient in any manner, the RO must implement corrective procedures at once. 5. After ensuring that all required development is complete, the RO must readjudicate the claims. If either claim is denied, issue a supplemental statement of the case before returning the claim to the Board, if otherwise in order. The appellant 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). _________________________________________________ DEREK R. BROWN 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).