Citation Nr: 1325880 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-03 263 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a left knee disorder, to include degenerative arthritis. 2. Entitlement to service connection for a right knee disorder, to include degenerative arthritis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service in the Army from January 1966 to December 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue 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 further development is necessary in order to adjudicate the Veteran's claim. As an initial matter, the Board notes that the Veteran's service treatment records (STRs) are unavailable, as the RO made a Formal Finding on the Unavailability of Service Treatment records in May 2009. The Board is mindful that, in a case such as this, VA has a heightened obligation to assist the Veteran in the development of his claim. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). In an April 2009 statement, the Veteran stated that he was filing, among other things, a claim of service connection for a left knee condition, contending that such condition was a direct result of his service in the U.S. Army from 1966 to 1968. In that statement, he related that he hurt his left knee "on a greese [sic] plug and jumping off a conveyor belt." (See Statement in Support of Claim, dated April 2, 2009). In a subsequently dated statement, the Veteran stated that in June 1967 to August 1967, when he was home on leave, he turned his motorcycle over and hurt his (left) knee. He reported that he did not file an accident report, and that he did not seek medical attention. He asserted that his (left) knee has bothered him since the motorcycle accident; and that, in 1975, he underwent surgery on his left knee at Montgomery General Hospital. The Veteran further stated that he was filing a claim of secondary service connection for a right knee condition, contending that his left knee has caused pain in the right knee due to overcompensating. (See Statement in Support of Claim, dated April 20, 2009). In July 2009 the Veteran submitted a buddy statement from a fellow service member. The author reported that while he and the Veteran were in service, the Veteran told him that he hurt his left knee in a motorcycle accident while on leave. The author reported that the Veteran's (left) knee continued to bother him a lot, and that the Veteran had problems with his left knee the rest of his time in the Army. The author also reported that he encouraged the Veteran to seek medical treatment but the Veteran did not because he was afraid he would be medically discharged from service. (See Statement of R.L.J., dated July 15, 2009). On his February 2011 Substantive Appeal (VA Form 9), the Veteran asserted that if not for the in-service left knee injury, that knee would have been stronger than it was, and he would not have injured his left knee after service. The Board notes that the Veteran is competent to relate a history of having sustained a left knee injury in service and his symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Similarly, the fellow service member is competent to report that he observed the Veteran suffering from left knee problems in service. Moreover, to the extent that these statements describe a left knee injury sustained by the Veteran at the time of a motorcycle accident while in service, the Board presently finds that part of the statements to be credible in the absence of any countervailing evidence. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Post-service private treatment records indicate that in 1975 the Veteran injured his left knee at work and underwent surgery. Private treatment records also reveal that the Veteran underwent a partial left knee replacement, and that he later fell off a roof in November 2008 and complained of left knee pain. Post-service private and VA treatment records show diagnoses of left knee degenerative arthritis and right knee degenerative arthritis. The Board notes that in October 2009, the Veteran underwent a general examination for pension purposes but has not underwent a VA examination in regards to the etiology of his bilateral knee conditions. As such, a remand is necessary for an opinion on the etiology of the Veteran's left knee and right knee degenerative arthritis. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names, addresses, and dates of treatment of all outstanding medical care providers, both VA and private, who have treated him for his left knee and right knee. Secure any necessary authorizations, to specifically include the medical records pertaining to the partial left knee replacement; and those pertaining to the 1975 left knee surgery at the Montgomery General Hospital in West Virginia. If any requested records cannot be obtained, the Veteran and her representative should be notified of such. 2. After associating any outstanding evidence with the claims folder, schedule the Veteran for a VA examination to determine the etiology of any left knee disorder, to include left knee degenerative arthritis, and any right knee disorder, to include degenerative arthritis, that are found to be present. The entire claims file (i.e., both the paper claims file and any electronic medical records) and a copy of this Remand should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. All required testing must be performed. (a). The examiner is asked to provide an opinion as to the following: Is it at least as likely as not (i.e., there is at least a 50 percent probability) that any current diagnosis of a left knee disorder, to include left knee degenerative arthritis, that the Veteran now has is related to any incident, event, or injury that occurred in service, to include the competent and credible accounts (by the Veteran and his service buddy) of the Veteran having injured his left knee following a motorcycle accident while on active duty? (b). If the examiner concludes that any current diagnosis of a left knee disorder, to include left knee degenerative arthritis, that the Veteran now has is related to service, the examiner is asked to provide an opinion as to the following: Is it at least as likely as not that any current diagnosis of a right knee disorder, to include right knee degenerative arthritis, was caused by, or aggravated (i.e., permanently worsened beyond its normal progression) by any currently diagnosed left knee disorder, to include left knee degenerative arthritis? In addressing these questions, the examiner should note that the Board finds competent and credible that part of the Veteran's statement and the buddy statement regarding an in-service left knee injury from a motorcycle accident. Therefore, in commenting on the etiology and onset, the examiner must acknowledge and discuss the Veteran's statement and the buddy statement regarding this discrete in-service left knee injury. The examiner should also discuss the Veteran's contention that the in-service injury caused the Veteran to be susceptible to reinjuring his left knee after service. The examiner should express an opinion as to whether the in-service left knee injury caused such pathology that the resulting weakened left knee caused or made the Veteran more susceptible to post-service injuries. A complete rationale is required for all opinions rendered. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. After the development requested above has been completed to the extent possible, the RO must again review the record. If any benefit sought on appeal remains denied, the Veteran must be furnished a supplemental statement of the case and given the opportunity 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). _________________________________________________ DEBORAH W. SINGLETON 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).