Citation Nr: 1323332 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 09-46 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from January 1976 to January 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the claim currently on appeal. This claim was previously remanded by the Board in January 2013 so that the Veteran's representative could prepare a brief in support of the Veteran's claim. The Veteran requested in her November 2009 substantive appeal (VA Form 9) to appear at a hearing before a member of the Board. After further development of her claim, and per her request, a hearing was scheduled for May 2012. However, the Veteran failed to appear at the hearing and subsequently submitted an explanation for her absence as well as a request for a new hearing date. In July 2012, a member of the Board ruled favorably on the Veteran's motion to reschedule her hearing. A new hearing was scheduled for September 2012, but the Veteran failed to report to this hearing as well. As she was advised in a July 2012 letter that a failure to appear may be treated as a withdrawal of her hearing request, and since she has not provided VA with any explanation for her failure to report to her September 2012 hearing, her hearing request is considered withdrawn. 38 C.F.R. § 20.702(d) (2012). 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 Veteran contends that she is entitled to service connection for a left knee disability. Regrettably, an additional remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was previously afforded a VA examination for her left knee in November 2008. It was noted that the Veteran developed left knee pain while in basic training and that this was diagnosed as chondromalacia and treated conservatively. Since separating from the military, the Veteran gained approximately 100 pounds and was now suffering from degenerative joint disease of both knees. The examiner opined that it was less likely as not that the Veteran's current left knee degenerative joint disease was caused by or a result of military service. The examiner noted that degenerative joint disease was diagnosed some 30 years after service and that it was most likely due to the Veteran's severe weight problem. However, the above examiner failed to consider or discuss the Veteran's assertion of chronic knee symptomatology. According to a June 2008 record, the Veteran reported a long history of bilateral knee pain. It was noted that the Veteran thought this had existed for the past 25 to 30 years, but that the pain had gotten progressively worse over the previous five years. In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). While the Veteran's service treatment records reflect a complaint of left knee pain for the past 8 months, it is unclear if this was associated with a chronic disability. The Veteran herself described her symptomatology as intermittent and an evaluation of the lower extremities was deemed to be normal during the Veteran's December 1978 separation examination. However, the Veteran did indicate in her report of medical history associated with this examination that she did not know whether she had a history of a trick or locked knee and the examining physician noted a history of "inj. left? knee (sic)." The Board finds that an additional examination is necessary so that an opinion can be offered that takes into consideration the Veteran's report of chronic symptomatology since service. See 38 U.S.C.A. § 5103(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for an additional examination before an appropriate physician regarding the etiology of any current left knee disability(s). The Veteran's claims file and a copy of this remand must be made available to the examiner for review in conjunction with the scheduled examination and the examination report should reflect review of these items. The examiner is asked to perform all indicated tests and studies and identify what current disability (or disabilities) is associated with the Veteran's left knee. The examiner should then offer an opinion as to whether it is at least as likely as not that any current left knee disability manifested during, or as a result of, active military service. In formulating an opinion, the examiner must take into consideration and discuss the Veteran's in-service complaints of left knee pain for the past 8 months, as well as her 2008 assertion of knee symptomatology for the past 25 to 30 years. Any additional lay assertions offered by the Veteran upon examination should also be considered and discussed. A complete rationale must then be provided in support of all opinions offered. 2. The RO/AMC should then carefully review the medical opinion(s) obtained to ensure that the remand directives have been accomplished. If all questions posed are not sufficiently answered, the RO/AMC should return the case to the examiner for completion of the inquiry. 3. The RO/AMC should then readjudicate the claim on appeal in light of all of the evidence of record. If the claim remains denied, the RO/AMC should provide the appellant a supplemental statement of the case as to the issue on appeal, and afford her a reasonable period of time within which to respond thereto. 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). _________________________________________________ WAYNE M. BRAEUER 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).