Citation Nr: 1414791 Decision Date: 04/04/14 Archive Date: 04/11/14 DOCKET NO. 10-44 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Little Rock, Arkansas THE ISSUE Entitlement to service connection for a left knee disability, to include as secondary to a service connected right knee disability. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran had active service from September 1965 to July 1969 in the Navy and from June 1970 August 1986 in the Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). This case is now under the jurisdiction of the Little Rock, Arkansas RO. In February 2012, the Veteran presented sworn testimony during a Travel Board hearing in Little Rock, Arkansas, which was presided over by the undersigned Acting Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. In March 2006, the Veteran revoked his power of attorney and has continued his appeal unrepresented. After questioning about this matter by the undersigned, the Veteran testified he would like to continue his appeal unrepresented. 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 Regrettably, a remand is necessary for further evidentiary development of the Veteran's claim for service connection for a left knee disability, to include residuals of total left knee replacement. The Board notes that the Veteran was not provided a VA examination to determine whether the left knee condition which led to the total left knee replacement was related to his service. The Board finds that a VA examination and further evidentiary development is warranted. The United States Court of Appeals for Veterans Claims (Court) has held a medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. The third element could be satisfied by competent evidence showing post-service treatment for a condition or other possible association with military service. 38 C.F.R. § 3.159(c)(4). The threshold for establishing the third element is low for there need only be evidence that "indicates" that there "may" be a nexus between the current disability and military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Under the circumstances presented in this case, the Board finds that the Veteran has met the requirements established in McLendon. (1) The Veteran has submitted medical evidence from 1st Fighter Wing Hospital at the Langley Air Force Base which indicated that he had a total knee replacement in February 2007 due to osteoporosis of the knee. The Board acknowledges that with residuals of a total left knee replacement, the element of a current knee disability has clearly been established. (2) The Veteran's service treatment records include reports of his left leg "giving out" in January 1984, March 1984, and a diagnosis of chondromalaica of the left knee in May 1986. Additionally, while the Medical Examining Board (MEB) at the Veteran's discharge focused on his right knee, the May 1986 separation examination noted bilateral knee pain. (3) The Veteran testified in February 2012 that following his separation from service he had continued symptoms of pain in his left knee. In reference to the third element of McLendon, Board finds the low threshold is met here. The Veteran's testimony in relation to the continued symptoms of his left knee disability is credible and sufficient, for the purpose of providing a VA examination, to indicate there may be a relationship between the Veteran's in-service left knee condition and his later total left knee replacement. Therefore, the Board finds the Veteran should be afforded a VA examination. With respect to the medical records from the 1st Fighter Wing Hospital at Langley Air Force Base (AFB hospital), the Board acknowledges that in the Veteran's relevant "consent to release," the Veteran indicated that this hospital had records from February 2007. However, the Board recognizes that this was the month of the Veteran's total knee replacement, and the medical records received thus far indicate that there may be additional medical records from this facility which predate the Veteran's total left knee replacement. In making this request, the Board notes that the record contains evidence that in November 2008, the AFB hospital responded to a VA request for additional records with the statement "mailed what we had." However, the Board again notes the relevant "consent to release," which authorized the release of records only from February 2007. Therefore, the Board reasons there may be records which predate February 2007 from the AFB hospital. 38 C.F.R. § 3.159(c)(2) (2013). Bell v. Derwinski, 2 Vet. App. 611 (1992). As such, the Board finds that before adjudication of the underlying claim can be continued, VA must explore the possibility that there may be outstanding medical records from the AFB hospital. If any such records are obtained, they should be associated with either the Veteran's physical claims folder or his electronic VA file. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his left knee disability. The Veteran should be requested to sign any necessary authorization for release of medical records to VA. The Board is particularly interested in medical records which pre-date the Veteran's February 2007 total left knee replacement. These records include medical records from the Langley AFB hospital. Any archived records should be retrieved from storage. If the RO/AMC cannot obtain records identified, a notation to that effect should be included in the file. The Veteran is to be notified of unsuccessful efforts in this regard. 2. Thereafter, schedule the Veteran for a VA examination. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All studies, tests, and evaluations should be performed as deemed necessary by the examiner, and the results of any testing must be included in the examination report. The VA examiner should review the service treatment records and any post-service records contained in the claims folder and take a detailed history from the Veteran regarding his disability, and address the Veteran's statement of continuity of symptoms since his service. After considering the pertinent information in the record in its entirety, the VA examiner should opine as to whether it is at least as likely as not, i.e. 50 percent probability or greater, that the Veteran's left knee disability, which led to his total knee replacement, was related to the Veteran's service. The VA examiner should also opine as to as to whether it is at least as likely as not, i.e. 50 percent probability or greater, that the Veteran's left knee disability was caused or aggravated by his service connected right knee disability. For any negative opinion, the examiner must identify the medical reasons as to why the evidence regarding in-service injury or aggravation does not provide sufficient proof of a relationship between the Veteran's current identified disabilities and his period of military service or his service-connected right knee disability. If the examiner determines that an opinion cannot be provided without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. The AOJ should ensure that any additional evidentiary development suggested by the audiologist should be undertaken so that a definite opinion can be obtained. 4. Ensure that the examination report complies with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 5. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issue of entitlement to service connection for a left knee disability. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. The Veteran 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 or by the Court 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). _________________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court of. 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).