Citation Nr: 1510571 Decision Date: 03/13/15 Archive Date: 03/24/15 DOCKET NO. 08-37 278 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for osteoarthritis of the knees. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kate Sosna, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1952 to September 1956. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the issue of entitlement to service connection for hearing loss was also denied in the September 2007 rating decision along with the claim currently on appeal. Following additional development, the RO granted service connection for hearing loss in an April 2011 rating decision. As the issue on appeal has been granted, that issue is no longer before the Board. See generally Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). In November 2010, the Veteran testified before a Decision Review Officer (DRO) at the RO. A transcript of this hearing is associated with the claims file. In his December 2008 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge of the Board. A Board hearing was scheduled for November 2014, but the Veteran subsequently cancelled his hearing request. Thus, his hearing request is considered withdrawn. 38 C.F.R. § 20.704(e) (2014). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that additional development is necessary for the claim for service connection for osteoarthritis of the knees. When there is evidence that a Veteran's service treatment records have been lost or destroyed, as is the case here, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist a claimant in developing a claim, and to explain its findings and conclusions. Russo v. Brown, 9 Vet. App. 46, 51 (1996); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). VA treatment records reflect that the Veteran is currently diagnosed with osteoarthritis of the knees. The Veteran alleges that this condition is related to knee injuries he sustained in service. Specifically, he reports that his right knee was hit with shrapnel while serving in Korea in January 1952 and that his left knee was injured playing football in service. The Veteran reports receiving treatment for both of these injuries in service. The DD Form 214 indicates that the Veteran's period of service was from September 1952 to September 1956, with no prior service. Thus, he was not in service in January 1952. Moreover, his DD Form 214 indicates that the Veteran had no wounds received as a result of action with enemy forces action, and he did not receive any medals or decorations consistent with combat. The Veteran reports that his records were not accurately updated to reflect his combat gunner status or his shrapnel injury. The Veteran's separation examination from August 1956 indicates that his lower extremities were within normal limits when he separated from service. Given the foregoing, the Board finds that the Veteran should be afforded a VA examination with opinion prior to adjudication of his claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Finally, during his November 2010 DRO hearing the Veteran reported having a total left knee replacement in 2006, and while receiving VA treatment in January 2009 the Veteran reported receiving knee treatment from the VA medical center in Las Vegas. These records appear relevant and should be obtained. 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). Expedited handling is requested.) 1. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers who have treated him for his osteoarthritis of the knees, to include the provider who performed his left knee replacement. After securing any necessary releases, the AOJ 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. 2. Associate all VA treatment records from the Las Vegas VA medical center and updated VA treatment records dating since April 2012 with the claims file. 3. After the above development has been completed to the extent possible, schedule the Veteran for a VA knee examination to obtain an opinion as to whether the Veteran's osteoarthritis of the knees is related to his service. The claims file must be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current disability of either knee arose during service or is etiologically related to any incident of service, to include an injury playing flag football therein. For the purpose of the opinion, the examiner may accept that the Veteran injured his left knee during flag football and had to wear an ace bandage or brace for a week. A complete rationale for all opinions expressed should be provided. If the examiner cannot provide the above opinions 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.). 4. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and 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 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 2014). _________________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).