Citation Nr: 1332613 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 11-07 107 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. Reeder, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 through February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a left knee disability. 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 seeks service connection for a left knee disability, to include as secondary to a service-connected right knee disability. In denying the Veteran's claim for service connection, the RO relied on VA opinions dated August 2011 and February 2012. However, the Board concludes that an additional opinion is necessary. In the August 2011 VA examination report, the VA examiner opined as to whether the service connected right knee disability caused the Veteran's left knee disability. However, secondary service connection may be established when a service connected disability aggravates a nonservice connected disability. Specifically, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. Moreover, in the February 2012 addendum, the examiner opined that the left knee disability was not related to service. As the basis for this opinion, the examiner noted the service treatment records were silent as to left knee symptoms or treatment. However, the claims file contains multiple statements from the Veteran, as well as statements from two individuals with whom he served, asserting that the Veteran injured both knees in service. The Veteran alleges that he landed stiff legged in service resulting in injury to both knees. The service treatment records reveal that only the right knee required treatment at that time. His contention that both knees were aspirated at that time is not supported by the record and is not considered credible. See AZ v. Shinseki, No.2012-7046, 2013 WL 5420978, at *9-11 (Fed. Cir. Sept. 30, 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The Veteran noted that his knees improved until after service when the right knee began locking up and surgery was needed. Although he alleges this occurred in 1973, the record shows this was actually in 1979. Based on the above, the Board finds an additional examination and opinion is needed. Also, pursuant to the Veterans Claims Assistance Act of 2000, VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Although the record suggests that the Veteran had surgery on his left knee at a private medical facility in the 1970s, the record is devoid of any records relating to that surgery. On remand, these reasonably identified records should be sought if the Veteran submits a completed release for them. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1); see also Loving v. Nicholson, 19 Vet. App. 96, 102 (2005). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide information and a completed authorization form to enable VA to attempt to request additional records from his private physician documenting his left knee surgery, believed to have occurred in the 1970s. All attempts to fulfill this development should be documented in the claims file. If the search for any identified records is negative, the Veteran should be notified of such. 2. After the above has been completed to the extent possible and responses received have been associated with the claims file, a VA left knee examination should be scheduled. All tests deemed necessary should be completed and the results reported. The claims file must be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left knee disability arose in or is otherwise etiologically related to the Veteran's period of service. In rendering this opinion, the examiner should consider the Veteran's assertion that he landed stiff legged on both knees during service and whether such incident (despite resulting in treatment for the right knee but not the left knee in service and the resolution of knee complaints for several years after the incident) has resulted in his current left knee disability. (b) If the left knee disability is not related to service, is it at least as likely as not (50 percent or greater probability) that the Veteran's left knee disability is caused by his service-connected right knee disability? Please explain why or why not. (c) If not, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the left knee disability has been permanently worsened beyond normal progression (aggravated) by his service-connected right knee disability. Please explain why or why not. If the examiner finds the left knee disability is aggravated by a service-connected disability, the examiner should attempt to quantify the degree of aggravation. If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 3. After completing the requested actions, and any additional action deemed warranted, the RO/AMC should readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ K. A. BANFIELD 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).