Citation Nr: 1334796 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-33 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent for degenerative disc disease of the thoracolumbar spine. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for right knee disability, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Spouse ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from January 1951 to April 1954. This appeal comes to the Board of Veterans' Appeals (Board) from July 2008 and August 2009 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. 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 issue of entitlement to service connection for right knee disability being remanded and is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's degenerative disc disease of the thoracolumbar spine has been manifest by limitation of motion of his thoracolumbar spine to no more than 75 degrees forward flexion, 10 degrees extension, 20 degrees left and right lateral flexion and left lateral rotation to 20 degrees, and 15 degrees right lateral rotation with pain but no additional functional loss. 2. In June 1976 the RO denied service connection for right knee disability. The Veteran did not timely appeal that decision and no new evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the determination to the Veteran. 3. New evidence received since the June 1976 decision relates to an unestablished fact necessary to grant and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for right knee disability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for the Veteran's service-connected degenerative disc disease of the thoracolumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2013). 2. The June 1976 RO decision denying service connection for right knee disability is final. 38 U.S.C.A. § 7015 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 3. Evidence submitted to reopen the claim of entitlement to service connection for right knee disability is new and material. 38 U.S.C.A. §§ 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Back Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2013). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The following discussion addresses the Veteran's level of disability from the time the increased rating claim was filed in April 2009. Francisco, 7 Vet. App. 55; Hart, 21 Vet. App. 505. Under the general rating formula for diseases and injuries of the spine set forth in Diagnostic Codes (DC) 5235-5242, a 10 percent rating is assigned when forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; when the combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; when muscle spasm, guarding, or localized tenderness does not result in either an abnormal gait or abnormal spinal contour; or when there is a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted when forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation requires either that forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or that favorable ankylosis of the entire thoracolumbar spine is shown. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, Note 2. The Board must consider functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 when deciding whether a higher disability evaluation is warranted. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. A part that becomes painful on use must be regarded as seriously disabled. Id.; see also DeLuca. In March 2009 the Veteran had an MRI of his lumbar spine that showed degenerative changes. In April 2009 the Veteran participated in aquatic therapy at the VA for his back, rating his pain as a 7 out of 10. The Veteran was afforded a VA examination in May 2009. The forward flexion of his thoracolumbar spine was measured to 75 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 30 degrees. Pain was noted after repetitive use with no additional limitation of range of motion. Tenderness of the lumbar spine was noted. A neurological examination was normal. The Veteran reported constant pain at a level of 9 out of 10. He told the examiner he takes one Tylenol per day and one to two Motrin as needed. He reported the pain is elicited by physical activity and is burning, aching, sharp, and cramping. The examiner noted the Veteran's gait was normal. He found no evidence of radiating pain on movement, muscle spasm, or ankylosis. There was no intervertebral disc syndrome. In a September 2009 statement the Veteran said that his back bothers him when he walks and the pain sometimes causes him to go to bed. He also uses a massage chair and a bed that warms and massages. The Veteran underwent another VA examination in October 2010. His flexion was measured to 80 degrees, extension to 10 degrees, left lateral flexion to 20 degrees, left lateral rotation to 20 degrees, right lateral flexion to 20 degrees, and right lateral rotation to 15 degrees. The examiner reported being unable to test for additional limitation with repetitive motion. The examiner noted no spasm, atrophy, guarding, pain with motion, tenderness, or weakness. Although the Veteran had an antalgic gait, the examiner stated that it was due to the Veteran's knee problems. Sensory examination was normal and he had a negative Lasegue's sign. An x-ray showed multilevel degenerative disc disease changes of the lumbar spine with no significant interval change since the Veteran's October 2008 x-rays. The examiner diagnosed degenerative disc disease and arthritis of the lumbar spine and noted no signs of radiculopathy or other neurologic condition secondary to the lumbar spine. The examiner opined that the Veteran's "vague and nebulous history," lack of treatment, and use of only Tylenol for pain relief, suggests that the Veteran's back problems are not as severe as he claims and specifically not compatible with his history of pain at an 8 to 9 out of 10 level. The Veteran testified at his September 2013 Board hearing that he is unable to do heavy lifting due to his back, he sometimes walks to one side, and he has trouble getting out of bed in the morning. The Board finds that the Veteran's back condition does not warrant a rating above 10 percent. To be entitled to the next higher rating, 20 percent, for limitation of movement, forward flexion must not be greater than 60 degrees or combined range not greater than 120 degrees. Testing at both the Veteran's May 2009 and October 2010 VA examinations showed greater range of motion. A 20 percent rating is also warranted when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour. The Veteran was not noted to have muscle spasm or guarding at either examination. Although the October 2010 examiner noted an abnormal gait, he attributed it to the Veteran's knee problems. No other medical evidence suggests the Veteran meets the criteria for a 20 percent rating. The Board has also considered the DeLuca factors; however, the evidence does not support that the Veteran experiences additional functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement. The Board notes that the Veteran has reported pain, but pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. The Board finds that the Veteran's current 10 percent rating encompasses the problems, namely pain and limitation of motion, described by the Veteran. It is important for the Veteran to understand that without some symptoms associated with his back disability he would not be entitled to the 10 percent rating currently assigned. Because the Veteran has been diagnosed with degenerative disc disease, his disability of the low back may also be rated using the criteria for evaluating intervertebral disc syndrome under DC 5243. See 38 C.F.R. § 4.71a, Note (6). Under DC 5243, intervertebral disc syndrome (pre-operatively or post-operatively) is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Id. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent evaluation is warranted if incapacitating episodes have a total duration of at least two weeks but less than four weeks; a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks; and a 60 percent rating is warranted if the total duration is at least six weeks. See 38 C.F.R. § 4.71a (DC 5243). An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a Note (1). The Veteran testified he retired from working as a barber 12 years ago. The evidence does not show that he has ever been prescribed bed rest by a physician due to back pain. Thus, the Board finds that the Veteran has not had any incapacitating episodes within the meaning of DC 5243. Accordingly, a higher rating based on the alternative ratings formula for intervertebral disc syndrome is not warranted. In addition, the Veteran's VA examination reports did not show he has any associated neurological abnormalities and there is no other evidence of neurological abnormalities associated with the Veteran's back disability. Thus, separate ratings are not warranted for associated neurological abnormalities. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). Finally, the Board finds that referral for an extraschedular rating is not warranted. In an exceptional case where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the lay and medical evidence fails to show anything unique or unusual about the Veteran's disability that would render the schedular criteria inadequate. The Veteran's main complained of symptoms are pain and reduced range of motion, both of which are contemplated in the rating assigned. As such, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. Moreover, even if it were argued that the schedular rating criteria were inadequate, the Board finds no reason to refer the case to the Compensation and Pension Service to consider whether an extra-schedular rating is warranted. In this case, there is no evidence of any hospitalization associated with the Veteran's back disability or marked interference with his ability work. See 38 C.F.R. § 4.1 (indicating that generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability). The manifestations of the Veteran's disability are considered by the scheduler rating. Based on the foregoing, the Board finds the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). As the preponderance of the evidence is against the claim for an increased rating, the benefit of the doubt doctrine does not apply, and the claim for a rating in excess of 10 percent for degenerative disc disease of the thoracolumbar spine must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right Knee A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. 3.156 (2013). The Board is neither required nor permitted to analyze the merits of a previously denied claim if new and material evidence has not been submitted. Butler v. Brown, 9 Vet. App. 167, 171 (1996). New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App 110 (2010). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the AOJ by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the record when VA first decided the claim, VA will reconsider the claim as an original claim for benefits. 38 C.F.R. § 3.156(c). The RO denied service connection for right knee condition in June 1976. The Veteran did not file a timely notice of disagreement and no new evidence pertinent to the claim was received by VA prior to the expiration of the appeal period. In addition, VA has not received or associated with the claims file any relevant official service department records that existed and had not been associated with the claims file at the time of the June 1976 decision. Therefore, the June 1976 decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 3.156(b) and (c), 20.302, 20.1103. The basis of the prior final denial was the RO's finding that the evidence did not show that the Veteran's right knee condition was related to his military service. Thus, in order for the Veteran's claim to be reopened, evidence must have been added to the record since the June 1976 rating decision that addresses this basis. Evidence added to the record includes two photographs the Veteran contends show him with his right knee bandaged in service, VA treatment records from 2007 to 2010, and private treatment records from 2007 to 2010, including a June 2010 record in which the Veteran's private physician states that his impression is that the Veteran has degenerative disease of his right knee related to his 1976 meniscectomy and "possibly even to the injury in 1952 since this was the inception of his knee pain." The Veteran also testified at a September 2013 Board hearing that he made numerous parachute jumps in service, including one in which he injured his right knee. He testified that his knee was wrapped and he was put on light duty for four weeks as a result of the injury and that his knee has bothered him since. His spouse also testified that the Veteran's right knee has hurt him since he was in the military. Presumed credible, the evidence suggests that the Veteran's current knee condition could be related to an injury suffered in service. The evidence is both new and material, in that it raises a reasonable possibility of substantiating the Veteran's claim. The Board thus finds that new and material evidence has been submitted to reopen the issue of entitlement to service connection for a right knee condition since the June 1976 rating decision. On this basis, the issue of entitlement to service connection for a right knee injury is reopened. However, the Board finds that further development is necessary to decide the issue, as will be addressed in the remand section below. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Given the favorable disposition, the Board need not assess VA's compliance with the VCAA in the context of the issue of whether new and material evidence has been submitted to reopen his claim for service connection for right knee disability. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). However, the VA must have complied with the VCAA with respect to the Veteran's increased rating claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in May 2009. In the letter, the RO informed the Veteran of what evidence was required to substantiate the claims for an increased rating for degenerative disc disease of the thoracolumbar spine and of the Veteran's and VA's respective duties for obtaining evidence. In the letter the RO also provided notice with regard to how VA assigns disability ratings and effective dates. Thus, the duty to notify has been satisfied. Also, in Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the September 2013 Board hearing, the VLJ fully explained the issue on appeal. The Veteran was assisted at the hearing by an accredited representative from the Texas Veterans Commission, and the VLJ and the representative asked questions regarding the nature and severity of the Veteran's degenerative disc disease of the thoracolumbar spine, specifically regarding his symptoms and limitations. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claim, and specifically inquired as to any outstanding treatment records. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's service treatment records, VA treatment records, and private treatment records identified by the Veteran. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was afforded VA medical examinations in May 2009 and October 2010. The examiners, medical professionals, obtained an accurate history, listened to the Veteran's assertions, and performed the necessary tests. The examiners provided the Board with sufficient information to rate the Veteran's disability. Therefore, the Board finds that the examinations are adequate and contain sufficient information to decide the issue on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183. ORDER Entitlement to a disability rating in excess of 10 percent for degenerative disc disease of the thoracolumbar spine is denied. New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for right knee disability is reopened and, to that extent only, the appeal is granted. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the issue of entitlement to service connection for a right knee condition, so that the Veteran is afforded every possible consideration. The Veteran asserts he has a right knee disability related to service. Specifically, he contends that he injured his knee in service in a parachute jump and has a continuing right knee disability as a result. VA treatment records show he has been diagnosed with osteoarthritis of the right knee. He underwent a arthroscopy, arthrotomy, and medial meniscectomy of his right knee in April 1976. His treatment records reflect no complaints of a right knee injury in service, nor is any noted on his April 1954 discharge examination. His DD-214 does reflect that the Veteran earned the Parachutists Badge. The Veteran testified at a September 2013 Board hearing that he made numerous parachute jumps in service, including one in which he injured his right knee. He testified that his knee was wrapped and he was put on light duty for four weeks as a result of the injury and that his knee has bothered him since. His spouse also testified that the Veteran's right knee has hurt him since he was in the military. In a June 2010 treatment record the Veteran's private physician stated that the Veteran's degenerative disease of his right knee is related to his 1976 meniscectomy and "possibly even to the injury in 1952 since this was the inception of his knee pain." Thus, the record reflects a current right knee disability, as well as evidence suggesting a nexus between that disability and an injury in service. However, there is not sufficient evidence to support a decision on the merits. Under these circumstances, the Veteran should be provided a VA examination and opinion addressing whether his claimed right knee disability is the result of his service, to include his alleged parachute jump injury. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). 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. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of his right knee condition. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. The examiner must record all pertinent medical complaints, symptoms, and clinical findings, and must review the results of any testing prior to completion of the report. Following a review of the claims file, to include service and post-service medical records, and the examination results, the examiner is requested to determine whether the Veteran has a right knee condition. If such disability is diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not (i.e. a 50 percent probability or more) that any such disability is related to service, to specifically include the Veteran's alleged parachute jump injury. 2. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. 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). ______________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs