Citation Nr: 1326583 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 09-50 504 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE Entitlement to service connection for a bilateral knee disability, to include osteoarthritis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from June 1972 to June 1978, and from July 1981 to July 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision that, in pertinent part, denied service connection for a bilateral knee disability. The Veteran timely appealed. In April 2013, the Board requested a medical expert opinion from the Veterans Health Administration (VHA) for purposes of addressing medical questions for an equitable disposition of the appeal. See 38 C.F.R. § 20.901 (2012). This opinion was obtained in June 2013 and has been associated with the claims file. Pursuant to 38 C.F.R. § 20.903, the Veteran was sent a notice letter following the Board's receipt of the June 2013 VHA opinion; and was afforded a period of 60 days to submit any additional evidence or argument. Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran and his representative when further action is required. REMAND The Veteran contends that service connection is warranted for a bilateral knee disability, to include osteoarthritis, on the basis that his knee joints deteriorated due to both injury in active service and performance of his military duties. He reportedly wore combat boots for physical training, which he alleges damaged his knees and he experienced a lot of pain while running. He also contends that he twisted his knees in active service at the time when he broke his foot, and that his activities were restricted several times due to joint pain. He also had a weight problem in active service, which he alleges contributed to the deteriorating knee joints. The Veteran is competent to describe his symptoms. It appears that there are additional medical records that are outstanding. Private treatment records, dated in August 2004, reflect that the Veteran "had his knees drained before." During the April 2012 VA examination, the Veteran reported a medical history of arthroscopic surgery in 1985 and 1986 in the left knee and in the right knee, respectively. These records are relevant to the Veteran's claim for service connection, and should be obtained. Accordingly, VA must ask the Veteran, once again, to identify or provide any additional treatment records pertaining to his bilateral knee disability, for the period from August 1984 to July 2004. The Veteran should also provide necessary releases, so VA could request relevant records on his behalf. In addition, recent VA treatment records should be obtained. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record). The Board is required to analyze the credibility and probative value of the evidence of record. In the event that pertinent treatment records for the period from August 1984 to July 2004 are associated with the claims file, VA must obtain an addendum opinion from the April 2012 examiner (or from a suitable substitute), for purposes of determining whether the Veteran's current bilateral knee disability, to include osteoarthritis, either had its onset during service or is otherwise related to his active service or to service-connected disabilities. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4) (2012). Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary authorization from the Veteran, please request treatment records pertaining to his bilateral knee disability, from August 1984 to July 2004. Please associate all records with the Veteran's claims file (physical or electronic). If, after making reasonable efforts to obtain the records VA is unable to secure them, please notify the Veteran and his representative and (a) identify the specific records that are unable to be obtained; (b) briefly explain the efforts made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim(s); and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Obtain recent VA treatment records for a bilateral knee disability, to include osteoarthritis, dated from May 2012 to the present date; and associate them with the Veteran's claims file (physical or electronic). 3. If, and only if, pertinent treatment records for the period from August 1984 to July 2004 are obtained and associated with the claims file, the April 2012 VA examination report should be returned to the examiner (or, if that examiner is unavailable, a suitable substitute) for an addendum expressing an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current bilateral knee disability had its onset in service or is otherwise related to service, or to his service-connected left peroneal nerve neuropathy and left L4-L5 radiculopathy and service-connected scoliosis with multi-level degenerative changes. If not, has the bilateral knee disability undergone an increase in severity due to service-connected disability; and if so, what is the permanent, measurable degree of bilateral knee disability that is attributed to service-connected disabilities. An explanation of the underlying reasons for any opinions offered must be included. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner is also advised that the Veteran is a credible and reliable historian with regard to the observable symptoms he experienced in service and after service, regardless of the lack of documented complaints in the service treatment records. 4. Thereafter, readjudicate the claim on appeal. If the benefits sought are not fully granted, furnish the Veteran and his representative a supplemental statement of the case (SSOC), and allow the appropriate response time before the claims file is returned to the Board, if otherwise in order. No action is required of the Veteran and his representative until they are notified by VA. The Veteran 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). _________________________________________________ BETHANY L. BUCK 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).