Citation Nr: 1307693 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 05-04 255 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for total right knee replacement due to right knee osteoarthritis, including as secondary to a service-connected low back disability with associated left lower extremity disability. 2. Entitlement to service connection for total left knee replacement due to left knee osteoarthritis, also including as secondary to the service-connected low back disability with associated left lower extremity disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from March 1953 to March 1956, from June 1956 to June 1960, from November 1960 to October 1964, and from November 1965 to August 1974. This appeal to the Board of Veterans' Appeals (Board) is from June 2004 and January 2005 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Board has advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). Since, however, the claims require further development before being decided on appeal, the Board is remanding the claims to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The service treatment records (STRs) concerning the Veteran's initial period of service from March 1953 to March 1956 are unavailable, presumably having been destroyed in a 1973 fire at the National Personnel Records Center (NPRC), which is a military records repository. But the STRs concerning all of his later periods of service from June 1956 to August 1974 were not damaged or destroyed, so in theory should be available for consideration in this appeal. In response to his request for a copy of the available STRs, he was sent a copy of them in July 2007. For whatever reason, however, these STRs are no longer in the claims file. While copies of some records are present, there are several other records noted by the May 2011 VA compensation examiner that are not of record. For this reason, the Board suspects that some of the records are missing from the file and therefore must be located. See 38 C.F.R. § 3.159(c)(2) and (c)(3) (2012). The Board also finds that the claims file must be returned to the August 2012 VA compensation examiner for clarification of his medical opinion concerning the Veteran's claims. In offering a rationale to support his opinion, this examiner relies, in part, on two falls that occurred in 1998, so on events that have occurred during the years since the Veteran's military service ended. In reading the treatment record, the Veteran admits to falling twice, but he did not indicate any injury to his knees as a result of the falls. He did complain of knee pain, but he indicated the pain had originated in his hips and went down to his knees, so presumably radiated from his hips to his knees. The December 2012 addendum also notes that risk factors for osteoarthritis include "repetitive , small insults over time", yet the August 2012 opinion does not appear to recognize the Veteran's reports of multiple small knee injuries during his military service by hitting steel knee knockers known as hatch coamings. See his January 2005 statement. In Dalton v. Nicholson, 21 Vet. App. 23 (2007), the Court held that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's STRs to provide a negative opinion. In this particular instance, this failing is compounded by the fact that the Veteran's claims are not entirely predicated on just the notion of relevant injury or repeated injury in service, but also on the premise that his bilateral knee disability is secondary to his service-connected low back disability with associated left lower extremity disability. Thus, additional comment from the VA examiner is needed before deciding the claims. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Accordingly, the claims are REMANDED for the following additional development and consideration: (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. Locate the STRs concerning the Veteran's service from 1956 to 1974, as these records appear to previously have been a part of the claims file (unlike those regarding his initial service from 1953 to 1956). If no additional STRs are obtained then this must be documented and the Veteran appropriately notified of this in writing. 38 C.F.R. § 3.159(c)(2), (c)(3), (e)(1). In the event these STRs are not located, contact the Veteran and ask that he provide copies of his service enlistment and separation records since he apparently received copies of his STRs in 2007. 2. Once these STRs are again associated with the claims file, or an exhaustive search has concluded, return the claims file to the August 2012 VA examiner for supplemental comment (an addendum opinion). The examiner must clarify the following: a) Explain the basis for concluding that the 2 falls that occurred in 1998 involved injury to the Veteran's knees, specifically, rather than say just to his hips. b) Explain why the Veteran's reports of multiple minor bilateral knee injuries is not a risk factor when minor injuries of this nature would not necessarily be reported. 3. Then readjudicate these claims in light of this and all other additional evidence. If these claims continue to be denied, send the Veteran and his representative a supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ KEITH W. ALLEN 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).