Citation Nr: 1332523 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-41 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1969. These matters are before the Board of Veterans' Appeals (Board) from a November 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Denver, Colorado. The Veteran had a travel Board hearing before the undersigned in May 2013. A transcript of the hearing is of record. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The VVA file contains the May 2013 hearing transcript. The other documents in the VVA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues 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 on his part is required. REMAND The Veteran claims that he has bilateral knee disabilities related to climbing, jumping from and falling from telephone poles during his military service. See October 2009 VA Form 9 and May 2013 hearing transcript. The Veteran's DD Form 214 shows that he had service in Vietnam and his military occupational specialty (MOS) was wireman. His STRs do not reveal the presence of a knee disability. Post-service treatment records note the Veteran's treatment for degenerative joint disease of both knees. In McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006), the Court held that in disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service- connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. There is again evidence of a current disability. The Veteran is also deemed competent to report injuring his knees from a fall, which is certainly plausible based on his MOS. 38 U.S.C.A. § 1154(a). He is likewise competent to report experiencing knee pain since service. Thus, under the "low threshold" standard of McLendon, an examination to determine if there is a nexus between the Veteran's claimed knee disabilities and his service, to include his duties therein, is warranted. Prior to the examination, all outstanding, pertinent medical records should be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should contact the Veteran and obtain the names and addresses of all medical care providers, VA and non-VA, who might have records, not already associated with the claims file, pertaining to post-service treatment or evaluation of any knee disability. After the Veteran has signed the appropriate releases, those records not already associated with the claims file should be obtained and associated with the claims file. All attempts to procure records should be documented in the file. If the RO or the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. Thereafter, the RO or the AMC should arrange for the Veteran to be examined by a physician with sufficient expertise to determine the etiology of any knee disability diagnosed during the period of the appeal (since May 2008). The Veteran should be properly notified of the examination and of the consequences of his failure to appear. His claims file must be reviewed by the examiner in conjunction with the examination. Based upon the claims file review and sound medical principles, the examiner should answer the following question: Is it at least as likely as not that the Veteran's knee disabilities are etiologically related to his active military service, to include his MOS as a wireman? The examiner must acknowledge and discuss the Veteran's lay statements, to include his explanation of the stresses and strains of his active duty. His claim of having fallen from a telephone is plausible and should so be considered. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After undertaking any further development deemed warranted (to include obtaining any treatment records or medical opinions), the RO or the AMC should readjudicate the Veteran's claim of entitlement to service connection for right and left knee disabilities. If any benefit sought on appeal remains denied, a Supplemental Statement of the Case should be furnished to the Veteran and his representative and they should be afforded the requisite opportunity to respond. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matters that the Board has remanded. See 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 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). _________________________________________________ MICHAEL A. HERMAN 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) (2013).