Citation Nr: 1327843 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 07-27 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for residuals of a shell fragment wound of the back (claimed as a low back condition). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1971. His decorations include the Purple Heart, the Bronze Star for Heroism with Oak Leaf Cluster, and the Combat Infantryman Badge. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified before a Decision Review Officer (DRO) at a hearing in Nashville, Tennessee in July 2008. The Veteran also testified at a Board hearing at the RO in Nashville, Tennessee in September 2009. This transcript has been associated with the file. The Board also notes that in a February 2012 rating decision the Veteran was granted service connection for a bilateral hearing loss disability. The Veteran has not disagreed with the assigned disability ratings or the effective dates. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection.) Therefore, this matter is considered resolved and is not in appellate status. This case was previously brought before the Board in February 2010 at which time the claims were remanded to the Agency of Original Jurisdiction (AOJ) to further assist the Veteran with the development of his appeal. The case is once again before the Board. The Veteran raised various claims in a June 2011 statement. The Veteran requested service connection for a right knee disability, tinnitus. He also requested an increased evaluation for his posttraumatic stress disorder and entitlement to a total disability rating based on individual unemployability. These issues have not yet been adjudicated. Accordingly, they are REFERRED to the RO for proper adjudication. 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 had a VA examination in August 2010 for his claimed disorders and the examiner provided an addendum opinion in September 2011. The August 2010 opinion appears to confuse the dates of the Veteran's separation examination and his September 1971 post-service VA examination, 3 months after separation from service, noting internal derangement of the left knee. The examiner also did not take into account the Veteran's statements of injuring his knee while performing helicopter jumps. Accordingly, a new examination is warranted. In the September 2011 addendum opinion the examiner stated there was no evidence that the Veteran had a back injury in service and accordingly a back disorder could not be related to service. This is to the contrary to the Veteran's statements, buddy statements, and an entry on his personnel record noting a wound to the buttocks/lower back. Accordingly, a new examination is warranted. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed left knee and low back disorders. The entire claims file (i.e. any medical records contained in Virtual VA, CAPRI, and AMIE), including this REMAND, must be reviewed by the examiner in conjunction with the opinion. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should confirm in the examination report that (s)he has reviewed the folder in conjunction with the examination. The examiner is asked to provide the following opinions: a) Whether the Veteran's left knee disorder is at least as likely as not (50 percent or greater probability) related to service. The examiner should specifically review the September 1971 post-service VA examination findings of internal derangement of the left knee. The examiner should also take into account the Veteran's hearing testimony that he performed multiple helicopter jumps while carrying substantial amounts of weight. b) Whether the Veteran's shell fragment wound residuals, to include a low back disorder, are at least as likely as not (50 percent or greater probability) related to service. For purposes of this examination, the examiner is directed to assume, based on the evidence currently of record, that the Veteran experienced fire in service and suffered a shell fragment wound of the upper buttocks/lower back. Please include a discussion of the reasons for all opinions provided. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 2. Next, ensure the opinions are responsive to this determinative issue of causation or provides sufficient explanation as to why it cannot be. If they are not, take any needed corrective action. See Stegall v. West, 11 Vet. App. 268 (1998); 38 C.F.R. § 4.2. 3. Finally, readjudicate the Veteran's claims. If the claims are not granted to the Veteran's satisfaction, send him and his representative another supplemental statement of the case and give him an opportunity to respond to it by submitting additional evidence and/or argument before returning the file to the Board for further appellate consideration of this remaining claim. 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). _________________________________________________ P.M. DILORENZO 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).