Citation Nr: 1324688	
Decision Date: 08/02/13    Archive Date: 08/13/13

DOCKET NO.  99-01 874A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama

THE ISSUES

1.  Entitlement to service connection for a bilateral knee disability.

2.  Entitlement to service connection for migraine headaches.

REPRESENTATION

Veteran represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Veteran
ATTORNEY FOR THE BOARD

L. J. Wells-Green, Counsel









INTRODUCTION

The Veteran served on active duty for training (ACDUTRA) from May 1985 to December 1985 and on active duty from December 1990 to May 1991, including a tour of duty in Southwest Asia from January 1991 to May 1991.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in July 1998 and August 2000 of a Department of Veterans Affairs (VA) Regional Office (RO).  

In August 2003, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is in the Veteran's file.  

In May 2007, in January 2011, and in February 2013 the Board remanded the case for further development.  

The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. 


REMAND

In its remands in January 2011 and February 2013, the Board directed the Veteran be afforded VA examinations.  Although the Veteran was provided VA examinations in March 2013, the opinions expressed by the VA examiner are inadequate to decide the claims and additional evidentiary development under the duty to assist is needed.






Accordingly, the claims are REMANDED for the following action:

1.  Afford the Veteran VA examinations to determine:

a).  Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability approximately 50 percent), or less likely than not (probability less than 50 percent) that degenerative joint disease of the knees is:

	i).  A progression of the knee injury as described by 	the Veteran in 1991 when she fell in a "foxhole" while 	serving in Southwest Asia, or,

	ii).  The development of a new and separate 	condition?

b).  Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability approximately 50 percent), or less likely than not (probability less than 50 percent) that migraine headaches:

i).  Are a progression of headaches described by the 	Veteran since 1991, or, 

ii).  The development of a new and separate 	condition?  

In formulating an opinion, the VA examiner is asked to consider that the Veteran is competent to describe a knee injury and headaches even though there is a lack of contemporaneous medical evidence.  




Stated differently, whereas here, the Veteran has report symptoms during service, the absence of evidence in the service treatment records cannot be the sole basis for a negative opinion. 

The Veteran's file must be made available to the VA examiner for review.  

2.  After the above development, adjudicate the claims of service connection for a bilateral knee disability and migraine headaches.  If any benefit sought is denied, furnish the Veteran and her representative a supplemental statement of the case and return the case to the Board.

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).


_________________________________________________
George E. Guido Jr.
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).