Citation Nr: 1316778 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 00-02 204 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for residuals of left knee injury. ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from July 1971 to July 1974. This matter initially came before the Board of Veterans' Appeals (Board) from a December 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In that decision, the RO denied the Veteran's application to reopen a claim for service connection for left knee injury residuals. In December 2001, the Board denied the application to reopen. In a September 2002 Order, the United States Court of Appeals for Veterans Claims (the Court) granted a Joint Motion by counsel for the Veteran and VA to vacate the Board decision and remand the claim to the Board. The Board remanded the application to reopen in May 2004, August 2008 and May 2011. In March 2012, the Board granted the application to reopen and remanded the claim for additional development, specifically, for a new VA examination, and one was conducted in May 2012. The Board notes that the Veteran, who has been incarcerated during the pendency of this appeal, requested a Board hearing in his January 2000 substantive appeal (VA Form 9), and some of the above Board remands related to this request. In August 2011, however, the Veteran withdrew his hearing request. In an October 2012 statement, the Veteran's attorney wrote that the Veteran continued to appeal all denials, all ratings, all effective dates, and that he requests the Board to consider all issues on appeal under one decision. However, the Board does not have jurisdiction to reach any claims that have not been properly appealed to it. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2012). The Board will therefore consider only the claim that has been properly appealed, for service connection for left knee injury residuals. The Veteran's attorney also wrote that the evidence supported the Veteran's claims, including entitlement to TDIU benefits, if applicable. The Board notes that the Veteran is not in receipt of service connection for any disability, and would thus be ineligible for a TDIU. 38 C.F.R. § 4.16 (2012). To the extent that the Veteran's attorney has identified any outstanding issues that have been raised but not adjudicated, they are referred to the RO for appropriate action. The claim for service connection for left knee injury residuals is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. In this case, the representative has withdrawn and the Veteran has been informed of his options. REMAND Once VA undertakes the effort to provide an examination when developing 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. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this case, the service treatment records noted complaint of left knee injury with giving out, and a diagnosis of moderate chondromalacia of the patella. The June 1974 separation examination indicated that the musculoskeletal system and lower extremities were normal, and an August 1980 VA examination of the left knee found it was normal with no residuals. An October 2003 VA treatment note indicated complaints of knee pain, noted the in-service left injury and diagnosed minor degenerative changes. An August 2009 VA examination was conducted, and the VA examiner, a physician's assistant (PA-C), noted the Veteran's in-service left knee injury, normal separation examination, and a normal August 1980 VA examination. The examiner noted that the Veteran had "some mild chondromalacia patella of the left knee in service but there is no indication of any treatment or complaints regarding the left knee since discharge from service in 1974." This examination was inadequate, as it was based on an inaccurate factual premise that the Veteran did not have treatment or complains regarding the left knee since discharge from service. As indicated in the October 2003 VA treatment note, the Veteran has complained of knee pain and been diagnosed with degenerative changes of the left knee. The Board therefore instructed that the Veteran be afforded a new VA examination and such examination was conducted by a different PA-C in May 2012. While the August 2009 VA examiner found that the left knee was normal other than mild patellofemoral crepitus, the May 2012 VA examiner diagnosed left knee degenerative arthritis. His opinion, however, suffers from the same deficiency as the August 2009 VA examiner. He wrote, "He had no knee complaints at discharge. There is no record of him having a knee problem after service." It is not clear what the VA examiner meant in this statement, but the October 2003 VA treatment note indicates a knee problem after service, thus appearing to contradict the VA examiner's statement. Moreover, the Veteran has stated that he has experienced left knee pain and giving out since service, and is competent to do so. He has also submitted medical literature in support of his claim. Given the above, the Board finds that an opinion from a VA physician is warranted in this case, which addresses whether the Veteran's current left knee disability is related to service and considers all of the evidence, including the Veteran's lay statements as to continuity of left knee symptomatology and post service treatment including the October 2003 VA treatment note. Accordingly, the case is REMANDED for the following action: Obtain an opinion from an appropriate VA physician. The claims file must be sent to the physician for review. The physician should indicate whether it is as least as likely as not (50 percent probability or more) that the Veteran's left knee disability is related to his in-service left knee injury, symptoms, and/or diagnosis, or anything else in service. The physician must explain the reasons for his conclusion based on all of the evidence of record. In doing so, he should address the Veteran's statements as to the in-service left knee injury, symptoms, and treatment, as well as the post-service treatment including VA treatment in October 2003 and the medical literature submitted by the Veteran. The physician is advised that the Veteran is competent to report injuries, symptoms, and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. If upon completion of the above action any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ H. N. SCHWARTZ 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).