Citation Nr: 1511919 Decision Date: 03/20/15 Archive Date: 04/01/15 DOCKET NO. 12-30 168 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Kimberly A. Mitchell, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1970 to December 1970. This matter comes before the Board of Veterans Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Jackson, Mississippi. In July 2012, the Veteran had a hearing with a Decision Review Officer (DRO). A transcript of the hearing is associated with the claims folder. This appeal includes documents contained in the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of all of these records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the issue of service connection for a right knee disability must be remanded for further development. The Veteran seeks service connection for a right knee disability due to a claimed in-service injury sustained while the Veteran was in basic training. Specifically, the Veteran asserts that he banged his right knee on some rocks while doing low crawling during basic training. He reported that he sought in-service treatment, and has had right knee pain that has progressively worsened since the in-service injury occurred. The Board notes that although the March 1970 report of medical history shows the Veteran reported that his right knee sometimes locked, the Veteran also reported that he had never seen a doctor and he had no pain or problems with his knee at the time. Moreover, the examiner examined the right knee and noted that there was no effusion or slipping. Consequently, the March 1970 report of medical examination reflects that the Veteran's knees were normal and no injury or defect was noted. Thus, the Board finds a knee disorder was not noted at entrance to service, and that the claim is therefore solely one based on direct service connection. The service treatment records show that in October 1970 the Veteran sought treatment for right knee pain on two different occasions in one week. An October 7, 1970, note reflects that the Veteran complained of mild pain in the collateral ligaments with stress. Anterior drawer sign was negative, and the Veteran was treated with an ace bandage and aspirin. An October 14, 1970 treatment note reflects that the Veteran complained of parapatellar pain of the right knee. McMurray's testing was negative. There was mild patellar grating and laxity of the patella without dislocation. The impression was probable mild chondromalacia. In June 2010, the Veteran was afforded a VA examination and opinion, however, the opinion was based on an assumption that the Veteran had a pre-existing right knee condition before his entry onto active duty. In this regard, as stated earlier, the March 1970 entrance examination did not note a knee condition on entry, and a right knee disorder has not clearly and unmistakably been shown to have preexisted service and not been aggravated by service. Therefore, since, the VA examiner's opinion was predicated on a false assumption, the Board finds that a new VA examination is necessary to determine whether the Veteran's current right knee disability was caused by or related to the in-service injury to his right knee. Accordingly, the case is REMANDED for the following action: 1. The RO should associate with the claims file, or Virtual VA or VBMS any outstanding VA treatment records related to the Veteran's treatment for a right knee condition. 2. Thereafter, the RO should schedule the Veteran for a VA joints examination with an examiner who hasn't previously examined the Veteran to determine the nature and etiology of any current right knee disability. The examiner must review the claims file and note that review in the examination report. All indicated studies and tests should be performed. The examiner should be requested to render an opinion regarding the following: Whether it is at least as likely as not (50 percent probability or more) that the Veteran's right knee disability had its onset in or is etiologically related to service. The examiner should take into account the Veteran's statements that his right knee became painful after he banged it on some rocks during basic training, and the Veteran's assertions that he has had pain in his right knee ever since the in-service injury. The examiner should also specifically consider and address the October 1970 service treatment notes that show the Veteran had pain in his right knee, mild patellar grating, laxity of the patella without dislocation, and a diagnosis of probable mild chondromalacia. The examiner is advised that the Veteran is competent to report history and symptoms and that his reports must be considered in formulating the requested opinion. If the examiner rejects the Veteran's reports, the examiner should provide a rationale for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made. 3. Then, readjudicate the issue on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case, allow the applicable time for response, and then return the case to the Board. 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). _________________________________________________ Michael J. Skaltsounis Acting 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).