Citation Nr: 1443809 Decision Date: 10/02/14 Archive Date: 10/10/14 DOCKET NO. 10-00 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a bilateral knee disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to December 1969, September 1974 to July 1980, July 2003 to April 2004, and November 2005 to August 2007. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran essentially contends that he a current bilateral knee disability related to service. He asserts that his knee disability is due to carrying body armor and gear while in Iraq. The relevant evidence of record includes an August 2003 service treatment record showing right knee tendonitis and a November 2009 VA examination report, which was rendered in conjunction with evaluation of the Veteran and review of the medical records. A radiological report showed no acute osseous abnormality or significant degenerative change, and a diagnosis of chronic left knee pain as reported by the Veteran with no pathological diagnosis found on examination or X-ray was noted. The examiner indicated that wearing full battle armor would possibly increase stress on the knees while in Iraq but examination of both knees did not show any permeant residual effects of any permanent aggravation by wearing full battle armor. He noted that evaluation of the Veteran revealed mild tenderness and he could not see any residual effects of wearing full battle armor that caused any permanent damage of aggravation to both knees. An addendum report was subsequently obtained. The examiner found that the Veteran's current right knee condition was less likely as not related to his right knee tendonitis noted in service in August 2003. The examiner acknowledged that the February 2004 examination report showed continued flare-ups of the right knee on and off since 2003, but indicated that tendinitis would not cause degenerative changes. The examiner noted that the November 2005 pre-deployment screening cleared the Veteran for deployment and on his post-deployment report in July 2007 he denied suffering any injury while on active duty and denied any problems with his knees or joints at that time. Due to the lack of documentation of any knee problems in his post deployment assessment in July 2007, the examiner opined that it was less likely as not that the Veteran's current right knee condition with degenerative changes was related to his right knee tendinitis in August 2003. Additionally, the evidence includes a December 2010 private medical report from C.N.B., M.D. Dr. B indicated that the Veteran likely had degenerative joint disease/arthritis in his knee due to unrelenting knee pain with occasional swelling and noted that the Veteran carried a heavy pack during service. Dr. B also noted that it was well known that degenerative joint disease was caused by trauma. He opined that the Veteran's bilateral knee degenerative joint disease was due to service with multiple micro-trauma to his knee due to his heavy pack as his records did not show another more likely cause. The Board finds that the evidence is insufficient to render a decision at this juncture. Significantly, the earlier VA examination report showed that there was no significant disability on X-ray but the subsequent VA addendum report and Dr. B's report indicated a diagnosis of right/bilateral degenerative joint disease. However, neither Dr. B nor the VA examiner provide a radiological report for their findings. In particular, Dr. B's diagnosis appears to be based only on the Veteran's "unrelenting bilateral knee pain with occasional swelling." Due to the ambiguity of the nature of the Veteran's current knee disability, he should be afforded another examination on remand. Accordingly, the case is REMANDED for the following actions: 1. Arrange for the Veteran to undergo a VA examination to determine the nature and etiology of any current bilateral knee disability. The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and such review must be reflected on the examination report. A complete history should be elicited directly from the Veteran. Any tests and studies, including radiological studies, deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should determine the diagnosis of any current bilateral knee disability, specifically whether the Veteran has degenerative joint disease. The examiner should also determine whether it is at least as likely as not (a 50 percent probability or more) that any current knee disability had its onset in service, or is otherwise related to the Veteran's military service, to specifically include carrying body armor during service and notation of right knee tendonitis in August 2003. The examiner must provide a rationale for the opinions expressed and address all contradictory evidence of record. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should state such and provide rationale for that non-opinion. 2. Readjudicate the Veteran's claim based on all of the evidence received since the claim was last adjudicated. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran as 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). _________________________________________________ MICHAEL A. PAPPAS 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).