Citation Nr: 1333702 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 07-15 819 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a right knee disability, to include as secondary to a service connected back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, J.M. ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran had active duty service from August 1943 to March 1946, including service in the European Theater during World War II. This matter comes before the Board Veterans' Appeals (Board) on appeal from an August 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Los Angeles, California. This matter was remanded in November 2012 and July 2013 for further development. The Veteran was afforded an August 2012 hearing before the undersigned. A transcript of the hearing is associated with claims folder. In the Veteran's June 2013 Brief, he raised the issue of whether there was clear and mistakable error (CUE) in the assignment of a noncompensable rating for the residuals of a shell fragment wound (SFW) with the presence of retained foreign bodies. He also appears to raise the issue of entitlement to service connection for a left knee disability, to include as secondary to his service connected low back disability and/or right knee disability. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 claim has been previously remanded to obtain a competent medical opinion. The RO obtained two medical opinions in July 2013. The examiners opined that it was less likely than not that the Veteran's current right knee disability was incurred in or caused by an in-service accident, and that it was less likely than not secondary to a service connected low back disability. However, both examiners based their opinions on the fact that there is no evidence of treatment for many years after service. In an October 2013 Brief, the Veteran's representative correctly pointed out that continuity of treatment is not necessary for the granting of service connection. Moreover, the examiners appear to have determined that post-service treatment began in the late 1980s, which ignores the Veteran's testimony that he was also treated at some point in the 1970s, and critically, before his post-service motor vehicle accidents. The Board accepts as fact that the Veteran sought some treatment in the 1970s, though the extent of such treatment is unknown. Moreover, in this case, the Veteran testified in an August 2012 Board hearing that from the time of the in-service Jeep accident to the time he first sought treatment in the 1970s, he always had problems with the knee, but not so much as to prevent him from getting around. Additionally, the Veteran's daughter testified that she remembers the Veteran having knee problems even when she was little (the early 1960s). Consequently, there is testimony that the Veteran had problems with his knees ever since service (and before the post service motor vehicle accidents). These lay statements were not addressed by the VA examiners. The Board finds that an addendum to the VA examination reports is necessary to decide the claim. Accordingly, the case is REMANDED for the following action: (Please note, 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. The RO should make sure that the VA records are updated and in the claims folder. 2. The RO should obtain addendum opinions from the July 2013 VA examiners. The addendums should address the lay statements of continuity of symptomatology since service. The examiners are advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. Once deemed competent, the next inquiry is whether such statements are credible. To assess the credibility of such statements, the Board turns to the examiner's medical knowledge. Consequently, the examiners should indicate whether the lay statements of continuous post-service right knee pain are at least as likely as not plausible, given the nature of the reported in-service injury, and accepting as fact that the Veteran received some degree of treatment for the right knee during the 1970s. Following review of the entire record, the examiners should then state whether any right knee disorder is at least as likely as not (50 percent or greater probability) related to the jeep injury reported during active military service or is otherwise related to active military service. Additionally the examiners should state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's right knee disability was caused by his service connected low back disability. If not, the examiner should state whether it is at least as likely as not that the service-connected low back disability aggravated (permanently worsened beyond its natural progression) the claimed right knee disorder. If aggravation is found, the examiners should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiners must include a detailed medical rationale that reflects consideration of the Veteran's lay reports of the right knee injury as a jeep passenger and his post service occupation in construction. If the examiners cannot provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. Although the Veteran's service treatment records are unavailable, the examiners cannot use his reports of an absence of treatment, standing alone, as the basis for a negative opinion. 3. After completion of the above, the AMC should review the expanded record and determine if the benefits sought can be granted. If the claim remains denied, then the AMC should furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review. 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). _________________________________________________ ERIC S. LEBOFF 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).