Citation Nr: 1333026 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 07-34 879 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran had active military service from March 1998 to March 2001 and from January 2003 to March 2004. His awards include the Combat Infantryman Badge for service in Southwest Asia. He had additional inactive Army National Guard service between and after his periods of active service. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2011 the Board remanded this case for additional development. It now returns for further appellate review. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this case should take into account the existence of this electronic record. The issue of entitlement to service connection for posttraumatic stress disorder was raised in the August 2011 Informal Hearing Presentation submitted by the Veteran's representative. The Board referred this issue in its October 2011 decision, but it does not appear to have been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is again referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for a right knee disability. For the reasons that follow, his claim must be remanded. The record shows that at his enlistment examination in 1998, it was noted that the Veteran had sustained a laceration to his right knee at age 14 when he fell on a bed of oyster shells. Clinical evaluation at the time, however, revealed no abnormalities of the lower extremities and he was cleared for service. During his first period of active service, the record shows complaints of pain in both knees. Prior to his second period of active service, a November 2002 examination revealed the Veteran had a right knee strain for which he wore a brace to address occasional stiffness. This condition was not considered to significantly limit his duty, provided he wore the brace. A scar at the right patella also was noted. During the Veteran's second period of service, he was seen in November 2003 and January 2004 with complaints of right knee pain. A February 2004 record indicated that the Veteran's right knee pain was aggravated during his recent deployment. After his active service discharge in March 2004, the Veteran had an MRI of his right knee in November 2005, which was interpreted as revealing a normal right knee. However, a November 2005 Army National Guard record indicated the Veteran was given a profile for limited duty due to his knee. In a December 2006 VA examination he was diagnosed with right knee degenerative disease. In October 2011, the Board remanded the Veteran's claim to provide the Veteran with a VA examination addressing the question of whether his right knee disability was aggravated by his active service. The resulting VA examination took place in December 2011 and the VA examiner checked a box indicating that the pre-existing condition was not aggravated beyond its natural progression by an in-service injury, event or illness. However, she did not provide an adequate rationale for this opinion. Her rationale was that the "majority of in-service and post-service right knee complaints [were] directly associated with [the oyster laceration]" and that there was no objective evidence of right knee degenerative joint disease. The VA examiner did not explain how the Veteran's right knee disability was not aggravated in service beyond its natural progression. Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, a new examination is necessary to address the question of aggravation. Moreover, the December 2011 VA examiner referred to treatment records from the Panama City VA Medical Center (VAMC) dated in March 2010 and August 2011, but which are not associated with the file. Therefore on remand, the Veteran should be given an opportunity to identify any additional VA providers who treated his right knee, and any identified relevant VA treatment records must be obtained. In addition, the record contains a document submitted by the Veteran and dated April 3, 2012. It appears to be the second page of a two-page letter. However, the record is missing the first page of that letter. On remand, the Veteran should be asked to provide the full text of the letter. Finally, the Veteran requested a hearing in his October 2007 substantive appeal, and a hearing was scheduled for October 2008. While he did not appear for that scheduled hearing, a letter received from him prior to the scheduled date indicates he was working as a military contractor out of the country at that time. The Board's prior remand sought clarification as to whether the Veteran wished to appear before a member of the Board for a hearing. The AMC then sent the Veteran a letter in October 2011, seeking clarification in this regard. No reply was received from the Veteran and it is assumed he no longer desires a hearing. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran a) to provide the complete text of his letter dated April 3, 2012, b) to identify any VA facilities (apart from the Panama City VAMC) where he received treatment for his right knee, and 2. Obtain any identified relevant VA treatment records, including those from the Panama City VAMC dated from March 2010 to the present. 3. After completing the above steps and associating any outstanding records with the claims file, schedule the Veteran for an appropriate VA examination to determine whether his right knee disability was aggravated by service. The claims file must be made available to and reviewed by the examiner, and such review should be noted in the report. All appropriate tests and studies should be conducted. The examiner should identify the Veteran's current right knee disabilities. Then state whether it is at least as likely as not (50 % probability or greater) that a) any right knee disability had a permanent increase in severity during his active service (March 1998 to March 2001 and/or January 2003 to March 2004); and b) if there was a permanent increase in severity, state whether it was beyond the natural progression of the disability. The examiner should describe all findings in detail and provide a complete rationale for all opinions offered. If the examiner is unable to provide the requested opinions without resort to speculation, the reasons for that should be explained, noting particularly whether it is the limits of medical knowledge that prevents providing the opinion or missing facts. If it is missing facts, the information that is necessary to provide a non-speculative opinion should be described to the extent possible. 4. Then, readjudicate the Veteran's claim. If action remains adverse, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 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 E. KILCOYNE 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).