Citation Nr: 1328960 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 10-07 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a disability of the right knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from December 1982 to April 1988. 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, in pertinent part, denied service connection for a right knee disability. The Veteran testified at a November 2011 Travel Board hearing before the undersigned. A transcript of the hearing has been associated with the claims file. In an April 2012 decision, the Board denied service connection for a right knee disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR), the Court, in a May 2013, vacated the Board's April 2012 decision and remanded the matter to the Board. The issues of entitlement to service connection for disabilities of the left knee, the bilateral feet, and back, as well as sleep apnea and a disability resulting from asbestos exposure have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues and they are referred to the AOJ for appropriate action. 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 Pursuant to the JMR, this case has been returned to the Board for further development. At his November 2011 Travel Board hearing, the Veteran testified that shortly after entering active service, he slipped on black ice and injured his right knee. He stated that the injury occurred at the Francis E. Warren Air Force Base (AFB) in Cheyenne, Wyoming in April 1983. He was treated as an outpatient and his right knee was placed in a hard cast for several weeks. The Veteran further testified that he could not remember experiencing ongoing problems with the right knee after the cast was removed. He related that a couple of years passed after his separation from active service before he began experiencing "any kind of issues" with the right knee. However, he felt at the time that his symptoms were not severe enough to warrant seeking medical attention, and thus he treated his symptoms with over-the-counter medication. He stated that in 1994 or 1995, he underwent physical therapy for his right knee condition, but has been unable to obtain records of this treatment as they had been destroyed by the doctor's office. In July 2005 he sustained a right knee injury in his civilian job resulting in a torn meniscus which necessitated surgical repair. He reinjured his right knee again in December 2007 and is diagnosed with right knee patellar tendinopathy. The Veteran argues that his current right knee disability is etiologically related to his inservice injury, to include that this inservice injury precipitated later injuries. The Veteran's service treatment records do not reflect documentation of an injury to the right knee. They reflect treatment for left knee locking and a left knee sprain in September 1983 at the Francis E. Warren AFB, but there is no mention of the Veteran's right knee in these records. They also show treatment for left knee injuries in June 1984 and July 1985 with no mention of any right knee problems. In a June 1986 report of medical history form, which the Veteran filled out as part of a routine examination, and the accompanying explanatory notes, it is noted that the Veteran had a two-year history of pain in the "knee joints" following strenuous running. Thereafter, the service treatment records do not reflect complaints or treatment of knee pain. A July 1987 periodic examination reflects that the Veteran's lower extremities were found to be normal on clinical evaluation. A separation examination is not of record and the Veteran states that one was never performed. However, there is an April 1989 enlistment examination for the Air Force Reserve, which is dated about one year after the Veteran's April 1988 separation from active service. This examination report reflects that the Veteran's lower extremities were found to be normal on clinical evaluation. The Veteran did not mention any knee problems in the accompanying report of medical history, and denied a history of a "trick" or locked knee. After the Veteran's April 1988 separation from active service, a July 2005 private treatment record shows that the Veteran had sustained a work-related injury in his civilian job in which he twisted his right knee after climbing onto a fork lift. He related at this time that the pain had been present for approximately two weeks. He was diagnosed with a torn lateral meniscus and underwent surgical repair of the meniscus in August 2005. Thereafter, the private treatment records reflect that in June 2007 he felt a snap in his right knee and pain while he was walking. Private treatment records dated in 2008 show repeated visits for right knee pain. A June 2008 private treatment record reflects that x-ray studies were negative for evidence of a fracture, tumor, or infection. The Veteran was diagnosed with patellar tendinopathy. The Veteran has not been afforded a VA examination. Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i). A medical examination or medical opinion may be deemed necessary where the record contains competent medical evidence of a current diagnosed disability, establishes that the Veteran suffered an event, injury or disease in service, and indicates that the claimed disability may be associated with the established event, injury or disease in service. See Id. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court noted that the third prong of 38 C.F.R. § 3.159(c)(4)(I), requires that the evidence of record "indicate" that the claimed disability or symptoms may be associated with service, establishes a low threshold. See also Locklear v. Nicholson, 20 Vet. App. 410, at 418 (2006). In this case, the Veteran has provided lay evidence suggesting that he has a current right knee disability which originated during service and has requested a VA examination. In addition, it has been noted that the Veteran should be permitted to submit lay evidence and/or private medical evidence substantiating his assertions that he injured his right knee during service and that there is a nexus between that purported injury and his current right knee disability. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with updated VCAA notice. In that notification, inform him that he may submit lay evidence and/or private medical evidence substantiating his assertions that he injured his right knee during service and that there is a nexus between that purported injury and his current right knee disability. If the Veteran also wishes for additional private medical evidence to be obtained, he must submit the appropriate medical release(s) for VA to obtain this evidence. 2. Schedule the Veteran for a VA joints examination to determine the nature and etiology of any current right knee disability. Any indicated tests, including X-rays, if indicated, should be accomplished. The examiner should review the record prior to examination. The examiner should specifically consider the Veteran's lay testimony of a right knee injury and the inservice June 1986 report of medical history form which noted that the Veteran had a two-year history of pain in the "knee joints" following strenuous running. The examiner should consider the other service records as well. The examiner should review the post-service records of right knee injuries. The examiner should also consider the Veteran's statements that his inservice duties as well as the boots that he was required to wear negatively impacted his right knee and that he used over-the-counter medication post-service, for knee problems. The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current right knee disability had its clinical onset during service or is related to any in-service disease, event, or injury. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 3. The AMC should review the medical opinion obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, AMC should return the case to the examiner for completion of the inquiry. 4. The AMC should then readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded 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). _________________________________________________ K. PARAKKAL 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).