Citation Nr: 1309490 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 10-11 808 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1990 to March 1998. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board remanded the claim for additional development in September 2012. In December 2012, the Veteran provided testimony at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. 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 After a review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claims. VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, private treatment records indicate diagnoses of left knee osteoarthritis and bilateral knee patellofemoral syndrome. The Veteran has provided competent testimony of knee pain during service and of physical training and prolonged standing during service due to his military occupational specialty in the military police. At the Board hearing, the Veteran stated that he did not seek treatment while in the military for the injured knees and used self-medication and ice for treatment. The Veteran further testified that he experienced minor swelling, tightness, and irritation during service, and that the pain continued after service. Additionally, in a June 2011 lay statement from D.C., Jr., who indicated that he served with the Veteran in the Military Police, it was indicated that they had extensive physical training and that it was not uncommon for a Military Police member to stand for a twelve hour shift. In a separate June 2011 lay statement, D.W. indicated that the Veteran resided in his household for about a year post-discharge in 1998. He stated that the Veteran had difficulty standing from a seated position and standing for any length of time. His DD Form 214 confirms that he served as Military Police. Accordingly, remand for a VA examination is required. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with an appropriate examination to determine the etiology of his bilateral knee disorder. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. The examiner must provide an opinion, in light of the examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that the bilateral knee disorder was caused by, or is due to, the Veteran's military service. The examiner must specifically address the Veteran's assertions of in-service knee trauma due to physical training and 8 to 12 hour standing shifts while working as Military Police. The examiner should additionally address the Veteran's contention that he has experienced a continuity of bilateral knee symptomatology since his separation from service. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that 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 any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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). _________________________________________________ K. MILLIKAN Acting 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).