Citation Nr: 1314730 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 10-28 089 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a right knee disorder, to include as secondary to a left knee disorder. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESSES AT HEARING ON APPEAL The appellant and B.Q. ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to June 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In February 2013, the Veteran and B.Q. testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the Veteran's virtual claims file. All other evidence associated with the virtual file is duplicative of evidence contained in the paper file or irrelevant to the issues on appeal. 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 Board finds that additional development is necessary prior to adjudication of the claims on appeal. The Veteran testified in February 2013 that he injured his left knee prior to service and that it was aggravated during his period of service. He had also alleged that his right knee disorder is secondary to the left knee disorder. The Veteran's service treatment records show that he reported having a medical history of a trick or locked knee when he was examined upon entry into service in January 1968. The examiner indicated that the Veteran could not stay in a crouched position long or that it would result in swelling of his left knee. It was also noted that he had been advised to have cartilage removed in the left knee in September 1962. On examination, the Veteran's lower extremities were abnormal, and a notation was made that he had limited motion of his left knee. Beginning in April 1968, the Veteran experienced effusion in his left knee. In March 1968, he complained of pain in both of his knees and stated he had torn the cartilage in his left knee five years earlier. Following an examination, the impression was no acute pathology. An x-ray of the right knee revealed an ununited ossification center at the superior aspect of the right patella, but the radiograph was otherwise unremarkable. Records dated in May 1968 records show that the Veteran was scheduled for surgery for his medial meniscus tear. In May 1968, the Veteran was examined for a medical board evaluation. He reported having a history of a trick or locked knee. It was noted that he could not fully extend the leg, deep bend, or crouch. His lower extremities were abnormal, and there was a notation that he had a torn medial meniscus of the left knee. The May 1968 medical board report indicates that the Veteran first complained of knee pain in April 1968 that had been present for three weeks. He reported that he injured it in September 1962 while playing football. He was told he had torn cartilage and was treated conservatively. A letter from the Veteran's prior physician was described and confirmed the above diagnosis. The diagnosis after examination was a torn medial meniscus of the left knee. It was noted that the disorder was not incurred in the line of duty and existed prior to service. The medical board opined that the Veteran was unfit for service. The post-service medical records show that the Veteran has undergone arthroscopic surgery of both knees. His current diagnosis is osteoarthritis of both knees. Given the Veteran's history, the Board finds that he should be scheduled for a VA examination and opinion to determine the etiology of any current left and right knee disorders. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). In addition, the evidence of record indicates that the Veteran may be in receipt of disability benefits from the Social Security Administration (SSA). He testified that he was receiving such benefits during his February 2013 Board hearing, and a May 2009 letter from SSA shows that he was in receipt of benefits. However, it does not appear that any attempt has been made to obtain a copy of any SSA determination or the records upon which a decision may have been based. Where there has been a determination that a veteran is entitled to SSA benefits, the records concerning that decision are often needed by the VA for evaluation of pending claims and must be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Golz v. Shinseki, 530 F.3d 1317 (Fed. Cir. 2010). Therefore, the RO/AMC should obtain and associate such records with the Veteran's claims file. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain any outstanding treatment records from the VAMC in East Orange, New Jersey, dated since January 2009. All attempts to secure these records, and any response received, must be documented in the claims file. If no records are available, a response to that effect is required and should be documented in the file. 2. The RO/AMC should obtain a copy of any decision to grant or deny SSA benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. 3. After completing the requested development in the preceding paragraphs, the Veteran should be afforded a VA examination to determine the nature and etiology of any left and right knee disorders that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, his post-service medical records, and all lay statements Based on the records reviewed and the examination results, the examiner is requested to identify all current diagnoses of any right and left knee disorders that are present and specifically address the following questions: (a) Did a preexisting left knee disorder undergo aggravation during service? In other words, did a preexisting left knee disorder undergo any degree of worsening during service? For purposes of this question, the examiner should consider "aggravation" and "worsening" to mean that there was a permanent increase in severity beyond the natural progression of the disease. (b) If the examiner determines that the Veteran's left knee disorder underwent any degree of aggravation service, the examiner is asked to clarify whether this aggravation represents a permanent worsening of the underlying pathology due to service rather than a temporary or intermittent flare-up(s) resulting from service. Likewise, the examiner is asked to clarify whether any aggravation during service, if found, was due to the natural progression of the condition. (c) Without regard to the answers to (a) and (b) above, is it at least as likely as not (i.e., there is at least a 50 percent probability) that any current left knee disorder had its onset during service, became manifest within a one-year period following his discharge from service, or is otherwise causally related to any event or circumstance of his active service? (d) Is it at least as likely as not (i.e., there is at least a 50 percent probability) that any right knee disorder had its onset during service, became manifest within a one-year period following his discharge from service, or is otherwise causally related to any event or circumstance of his active service? (e) Is it at least as likely as not (i.e., there is at least a 50 percent probability) that any right knee disorder was caused or aggravated by a left knee disorder? In making all determinations, the examiner is asked to address the Veteran's own assertions regarding the onset and continuity of his knee symptomatology. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should provide a complete rationale for all opinions. 4. The RO/AMC must then review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. Thereafter, the RO/AMC should consider all of the evidence of record and readjudicate the issues remaining on appeal. If the benefit sought is not granted, issue a Supplemental Statement of the Case and allow the Veteran and his attorney an opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. 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). _________________________________________________ JESSICA J. WILLS 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).