Citation Nr: 1338692 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 11-06 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for right knee degenerative joint disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1960 to March 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2012, the Veteran presented testimony before the undersigned at videoconference hearing, and a copy of the hearing transcript has been associated with the claims file. 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 contends that his current right knee disability is related to a fall from a ladder in service or, alternatively, secondary to a service-connected left knee disability. In January 2010, a VA examiner diagnosed degenerative arthritis in the right knee and opined that it is less likely as not related to the left knee disability. However, he offered no opinion as to whether the Veteran's right knee disability is directly related to service, or whether the right knee disability is aggravated by the service-connected left knee disability. Therefore, the Board finds that an additional opinion is necessary to address all theories of contention. The Board is cognizant that the record contains an opinion in support of the Veteran's claim. Specifically, a private May 2010 opinion indicates that the Veteran's right knee pain is at least as likely as not to have resulted from favoring the left knee. The Board notes the Veteran also submitted a June 2010 statement from his VA internal medicine physician indicating that the Veteran's right knee pain "is least likely to be from the left leg problem." However, such statement, read literally, is against the claim. In any event, neither opinion was supported by rationale. Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. VA may grant service connection for disability caused by service-connected disability or for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. See Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002). In light of the above, the Board finds that remand is necessary for a new opinion. Additionally, as this matter is being remanded for other reasons, further efforts should be made to obtain any outstanding relevant VA or private treatment records. In this regard, the Veteran has reported prior injury to and treatment on his right knee in the 1990s. However, those earlier records have not yet been associated with the claims file. Finally, the Board notes that ongoing VA treatment notes dated through October 2013 have been associated with the Veteran's Virtual VA file since the most recent adjudication of this matter by the RO in September 2011. That evidence has not yet been considered by the RO, nor was it accompanied by a waiver. Therefore, it should be considered by RO in the first instance on remand. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, both VA and private, who have treated him for his right knee at any time, to include any provider who treated him for a torn meniscus or other injury to the right knee. After securing any necessary releases, the RO/AMC should request any records identified which are not duplicates of those contained in the claims file. If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified. In addition, obtain and associate with the claims file relevant VA treatment records from the VA Southern Nevada Health Care System, dated from September 2013 to present. All attempts to secure these records must be documented in the claims file. 2. After all available requested records are associated with the file, schedule the Veteran for VA knee examination to determine the nature of any current right knee disability and obtain a medical opinion as to whether this disability is possibly related to his period of service or his service-connected left knee disability. The entire claims file, to include electronic treatment records, must be made available to the examiner. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current right knee disability arose during service or is otherwise related to any incident of service, including claimed injury to the right knee falling off a ladder in service. If the foregoing opinion is negative, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current diagnosed right knee disability was caused by the Veteran's service-connected left knee disability. If not caused by the service-connected left knee disability, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current diagnosed right knee disability was permanently worsened beyond normal progression (versus an exacerbation of symptoms) by the service-connected left knee disability. If the examiner determines that a current diagnosed right knee disability was permanently worsened beyond normal progression (aggravated), the examiner should attempt to quantify the degree of aggravation. The examiner should explain the medical basis for the conclusions reached. If the examiner cannot provide the above opinion without resorting to speculation, the examiner should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. After the development requested above as well as any additional development deemed necessary has been completed, the record should again be reviewed, including all evidence associated with the claims file since September 2011. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ 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).