Citation Nr: 1313245 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 09-23 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for status post fracture right thumb with residual degenerative joint disease. 2. Entitlement to service connection for a right knee disability, claimed as secondary to service-connected disabilities. 3. Entitlement to service connection for recurring pneumonia. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from November 1983 to January 1987. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions issued in June 2007 and November 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In March 2013, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge, sitting at the RO. A transcript of the hearing is associated with the claims file. 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 The Veteran reported in VA treatment records that he had applied for benefits from the Social Security Administration (SSA). As these treatment notes pertain to disabilities on appeal, the Board presumes that records in the possession of SSA are relevant to the appeal. When VA has notice prior to the issuance of a final decision of the possible existence of certain records and their relevance, the Board must seek to obtain those records before proceeding with the appeal. Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992). Thus, the appeal must be remanded so that records from SSA may be obtained. Additionally, the Board observes that once VA has provided a VA examination or obtained a VA opinion, it must ensure that it is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). With respect to the right knee, the Veteran was provided VA examinations in November 2009 and November 2011. At the November 2009 VA examination, the examiner diagnosed right knee strain, but offered no opinion. In November 2011, the examiner offered no diagnosis, noting that X-rays were normal, but opined that he was unable to relate the right knee disability to any service-related episode. However, the Veteran has suggested that his right knee symptoms are due overcompensation as a result of his service-connected left knee disability. Further, his spouse indicated that his knees had been made worse by his service-connected bilateral foot disability. Even though X-rays were normal, for the purposes of this decision, the Veteran has a diagnosis of a right knee strain. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that service connection may be granted if a disability existed at the time a claim for VA disability compensation is filed or during the pendency of that claim, even though the disability resolved prior to the Secretary's adjudication of the claim). Therefore, the Board remands the appeal so that another VA examination of the Veteran's right knee may be scheduled and an opinion obtained as to whether the Veteran has a right knee disability that was caused or aggravated by service-connected disability. Accordingly, the case is REMANDED for the following action: 1. Obtain all records, including medical records and any decisions made, related to the Veteran's application for benefits from the SSA. All requests and responses, positive and negative, must be documented in the claims file. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his right knee disability. The claims file should be made available to the examiner in conjunction with the examination. Any necessary tests should be completed. The examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that any diagnosed right knee disability was caused or aggravated by a service-connected disability, to include a left knee disability, pes planus, and/or plantar fasciitis. Aggravation is defined as a permanent worsening beyond the natural progression of the disease. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A complete rationale for any opinion offered must be provided. 3. Notify the Veteran 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 any VA examination without good cause may include denial of one or more of his claim. See 38 C.F.R. §§ 3.158, 3.655 (2012). 4. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The Veteran 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).