Citation Nr: 1410164 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 10-46 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a left knee disability, claimed as osteoarthritis. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In August 2011, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing held at the RO. A transcript of the hearing has been associated with the claims file. The Board notes that during the hearing, the Veteran was granted a 60-day abeyance period for submission of additional evidence, to include any outstanding VA and/or private treatment records, as well as a DD-215 (in order to reflect his combat service). The 60-day period has expired and the Board has not received any additional evidence from the Veteran. The Board also notes that during the August 2011 Board hearing, the Veteran was represented by The American Legion; however, in April 2013, the Board received from the Buffalo RO a copy of an updated VA Form 21-22 that appoints the New York State Division of Veterans Affairs as the representative. Finally, in addition to the Veteran's paper claims file, there is an electronic (Virtual VA) file; as well as an electronic file in the Veterans Benefit Management System (VBMS). While a review of these files does not reveal any information that pertains to the Veteran's left knee disability, the Board notes that an August 2013 rating decision granted service connection for PTSD based on the Veteran's lay testimony of fear of hostile military or terrorist activity. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any action on his part is required. REMAND The Veteran seeks service connection for a left knee disability. He indicated that he injured his left knee on three separate occasions while on active duty. The Veteran's service treatment records (STRs) reveal that in April 1969, he fell off a truck and struck his left knee. Physical examination revealed no effusion; however there was a small bruise and abrasion. The Veteran was able to walk without difficulty. He was given an Ace wrap and medications. There is no further documentation noted in the STRs relevant to the Veteran's left knee. In January 1975, the Veteran submitted a claim for a left knee disability. He indicated that his left knee condition began in service and that he received treatment from the VA medical facility in Buffalo. In April 1975 correspondence, the Veteran withdrew his claim. In January 2010, the Veteran submitted a new claim for his left knee disability. He reported that while on active duty, in November 1967, he was carrying a ring of mortar when his foot slipped on a large leaf and the mortar hit his left knee. The Veteran reported that since that incident he has experienced continuous left knee symptoms to include popping and crunching. On May 2010 VA examination, the examiner diagnosed left knee osteoarthritis. He indicated that he was unable to resolve the etiology of the Veteran's left knee disability without a resort to mere speculation. The examiner essentially stated that the Veteran's left knee shows pathology; however the only evidence noted in the c-file was a truck incident in 1969, in which the Veteran only sustained a bruise. He noted that he did not find any evidence in the records that pertained to the slip and fall, and a mortar striking his left knee. The examiner noted that based on the current evidence available, falling off of a truck and sustaining a bruise should not have caused the amount of left knee disability currently shown. In his July 2010 notice of disagreement, the Veteran reported that he was involved in a mid-air crash. He indicated that his left knee was jammed on the M-60 mount. The Veteran attached evidence that corroborated the helicopter crash. During the August 2011 Board hearing, the Veteran reiterated his in-service injuries to his left knee. The Veteran also testified to continuous left knee symptoms since service discharge. As noted, the Veteran was afforded an examination in May 2010, and the examiner indicated that he was unable to resolve the issue regarding left knee disability without resorting to mere speculation. The Board notes that such a conclusion essentially amounts to a non-opinion and is of little or no probative value here. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Subsequently, he submitted information regarding a mid-air helicopter crash. In light of the above, the Board finds that a new VA examination, conducted by a different examiner is warranted. As noted, the Veteran originally submitted a claim for his left knee in January 1975. At the time, he identified VA treatment. During the hearing, the Veteran also testified to receiving treatment in the early 70s from VA for his left knee disability. A review of the Veteran's claims file, to include his electronic files, does not reveal any VA treatment records for that time period. As there appears to be outstanding VA treatment records, such should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and obtain the names and addresses of all medical care providers (private, VA, or other government) who have treated him for his left knee disability since service. After securing the necessary release(s), obtain such records. Whether or not he responds, obtain any outstanding VA treatment records, to specifically include any treatment records dated from 1971 through 1974. 2. To the extent an attempt to obtain any of these records is unsuccessful, document the attempts made, inform the Veteran and his representative of the negative results, and give him the opportunity to secure the records. 3. After the above development is completed, arrange for the Veteran to undergo an appropriate VA examination to determine the etiology of his left knee disability. The examiner must not have seen the Veteran previously. The claims file must be made available to the examining provider for review in conjunction with the examination. Following review of the claims folder, the VA provider should provide the following findings and opinion: Record in detail the Veteran's account that he sustained a left knee injury during the mid-air helicopter crash, and provide and opinion as to whether it is at least as likely as not that his current left knee osteoarthritis (or any other residuals) resulted from events during active service? Record in detail the Veteran's account that he sustained a left knee injury when a mortar was dropped and hit his left knee, and provide and opinion as to whether it is at least as likely as not that his current left knee osteoarthritis (or any other residuals) resulted from events during active service? Record in detail the Veteran's account that he sustained a left knee injury when he fell from a truck; provide and opinion as to whether it is at least as likely as not that his current left knee osteoarthritis (or any other residuals) resulted from events during active service? The VA examiner is specifically asked to discuss the Veteran's assertions regarding continuity of left knee symptomatology, to include popping and grinding of the left knee. Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain why this is so. In this regard, if the examiner concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the Veteran's left knee osteoarthritis. See Jones v. Shinseki, 23 Vet. App. 383 (2010). 4. Thereafter, readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a Supplemental Statement of the Case, containing notice of all relevant actions taken on the claim for benefits, to include a summary of the pertinent evidence and applicable law and regulations. An appropriate time should be allowed for response. 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 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. 2013). _________________________________________________ MARJORIE A. AUER 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).