Citation Nr: 1331903 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 11-34 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability. REPRESENTATION Appellant represented by: Hawaii Office of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from March 1960 to February 1963, with additional National Guard service. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. In February 2012, the Veteran testified during a hearing before RO personnel. A transcript of that hearing is of record. In September 2012, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND The Veteran contends that he has a left knee disability due to parachute jumps in service, or in the alternative, as secondary to a service-connected right knee disability. The Veteran asserts that he has had left knee symptoms since service. The Veteran service records show that in August 1960, while in jump school, he was seen for complaints pertaining to his right knee. On separation examination in December 1962, there was no complaints, findings, or diagnosis pertaining to the left knee. A June 1997 National Guard medical certificate shows that the Veteran complained of bad knees from airborne training since 1960. At that time of his September 1997 over 40 physical examination, he was found to have crepitus and decreased flexion in both knees. It was noted that the Veteran had a history of degenerative joint disease in both knees and that he was status post arthroscopy of the left knee, 10 years ago. An April 2010 VA examination report shows that the VA examiner found that there was no service medical record of any injury to the left knee. The diagnosis was degenerative joint disease of the left knee. The VA examiner opined that it was less likely as not (less than 50 percent probability) that the left knee disability was caused by or a result of his time in service. In a February 2012 letter, the Veteran's private physician, T.J. Kane, M.D., stated that the Veteran had end stage arthritis of the left knee. The physician believed that the Veterans knee injuries were the result of cumulative damage sustained while playing football in high school, while serving in the Armed Forces, and subsequently with the Maui Police Department and the Hawaii National Guard. The Board notes that in the June 2010 rating decision on appeal, the Veteran was granted service connection for a right knee replacement. Therefore, secondary service connection for a left knee disability must be considered, as raised by the Veteran during the September 2012 Board hearing. Service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. That includes service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). The April 2010 VA opinion did not consider the Veteran's contention that he has suffered with left knee symptoms from service, to include complaints documented in a January 1997 National Guard medical certificate. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion). In addition, subsequent to the April 2010 VA examination, the Veteran submitted a February 2012 private medical opinion that supports the Veteran's contentions. Thus, the Board finds that to fairly decide the merits of the Veteran's claim for service connection for a left knee condition, he should be provided an additional examination that addresses all the evidence of record, to include the Veteran's contentions of injury and continuity of symptomatology and the newly raised theory of secondary service connection. In addition, the Veteran should be properly notified of what evidence is needed to support his claims for secondary service connection. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). Accordingly, the case is REMANDED for the following actions: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested. 1. Send the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and authorization, to obtain any additional evidence, to include both VA and non VA medical records, pertinent to the claim on appeal that is not currently of record. Specifically request the Veteran to submit authorization to obtain all private medical records from T. J. Kane, M.D. If the appellant wants to obtain and submit those records, he may do so. 2. Ensure that the Veteran is properly notified of what evidence is needed to support a claim for service connection on a secondary basis. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 4398 (1995). 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed left knee disability. All indicated tests should be accomplished, to include x-rays, and all clinical findings reported in detail. The examiner should attempt to reconcile all other evidence and opinions of record, including the April 2010 VA opinion and the February 2012 private opinion from T. J. Kane, M.D. The examiner should clearly set forth the rationale for all opinions expressed. The VA examiner should provide the following information: (a) Clearly identify all diagnosed left knee disabilities. (b) For each diagnosed left knee disability, provide an opinion whether the disability is at least as likely as not (50 percent or more probability) incurred in or aggravated by the Veteran's service. The examiner must consider the Veteran's statements regarding the incurrence of the injury to the left knee, in addition to his statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). In providing the opinion, the examiner must reconcile the April 2010 VA medical opinion and the February 2012 private medical opinion from Dr. Kane. (c) The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed left knee disability is proximately due to or caused by the Veteran's service-connected right knee disability. (d) The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed left knee disability is aggravated (increased in severity beyond the normal progress of the disorder) by the Veteran's service-connected right knee disability. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. 38 C.F.R. § 3.310 (2012). 4. Then, readjudicate the claim. If the benefit sought on appeal remains denied, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Harvey P. Roberts 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).