Citation Nr: 1621293 Decision Date: 05/26/16 Archive Date: 06/08/16 DOCKET NO. 14-24 413A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and her daughter ATTORNEY FOR THE BOARD C. Samuelson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1977 to September 1989 and had additional National Guard service. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The RO in Fargo, North Dakota has jurisdiction over the appeal. In February 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that she hurt her right knee during physical training in service and has had pain and swelling since that time. She contends that she self-treated with braces and over-the-counter medication after service. She testified that she was seen at the hospital in 1999 for her knee; however, she did not see a doctor for her knee condition after service because of economic reasons and depression. The Veteran has current diagnoses of right medial meniscal tear and early degenerative changes of medial compartment. Her service treatment records (STRs) show a diagnosis of right knee patellar pain syndrome in September 1980, a follow-up visit for her right knee in October 1980, a complaint of knee pain in April 1981, and a report of trick or locked knee on her July 1989 report of medical history. A February 1978 medical record also showed a complaint of knee pain for two weeks. Thus, the first two elements of service connection are satisfied. Regarding the final element, nexus, the January 2014 and June 2014 VA examiners provided negative nexus opinions. However, the January 2014 examiner's report stated that after service the first mention of a right knee problem was noted in a civilian medical record from Sanford Bemidji Medical Center dated November 18, 2013, which was 32 years after service. In June 2014, the nurse practitioner who provided an addendum opinion noted that she concurred with the January 2014 opinion, her rationale being that the current knee condition was more than 30 years after service. These opinions are inaccurate as the claims file contains private treatment records from June 1999 showing complaints of knee pain and stiffness and a diagnosis of probable medial collateral ligament strain. An April 2005 VA examination for posttraumatic stress disorder, also noted chronic right knee pain. Thus, the January 2014 and June 2014 VA examiners opinions are inadequate, as they are based on an inaccurate factual premise. The examiners also did not consider the February 2015 buddy statement from J.P. contending that the Veteran had knee symptoms upon her return from service and continues to have swelling and pain in her knee. An addendum opinion is therefore necessary. Additionally, an April 1981 service treatment record noted that five years prior (which is prior to the Veteran's entry into service), the Veteran injured her right knee and had a dislocated knee. Accordingly, the VA examiner should address whether any right knee condition found to be present existed prior to service and, if so, whether the condition worsened during service. The January 2014 examiner noted there were no STRs in the claims file pertaining to the claimed injury in 1978 when the Veteran stated she dislocated her right knee. The examiner also noted the Veteran stated that she had numerous other STRs where she was seen for her right knee condition that were not in the claims file along with civilian medical records. Additionally, the claims file does not contain an entrance examination. As it appears that there may be outstanding service treatment records pertinent to the Veteran's service connection claim, these records should be requested on remand. The AOJ should also ask the Veteran to identify any additional, pertinent medical treatment that she received for her right knee, including treatment records prior to her entry into service, and take appropriate measures to obtain those records. The Veteran should also be given the opportunity to submit any additional, pertinent lay statements relating to her claims. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain any outstanding service treatment records, including the Veteran's entrance examination. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AOJ must notify the Veteran and (a) identify the specific records the AOJ is unable to obtain; (b) briefly explain the efforts that the AOJ made to obtain those records; (c) describe any further action to be taken by the AOJ with respect to the claim; and (d) inform the Veteran that she is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Obtain any VA treatment records pertaining to the Veteran. 3. Contact the Veteran and request that she identify any outstanding private treatment records, including treatment records prior to her entry into service, related to her right knee disability. After obtaining the necessary authorization forms from the Veteran, obtain any pertinent records and associate them with claims file. Any negative response should be in writing and associated with the claims file. 4. Notify the Veteran that she may submit lay statements from herself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed her in-service and post-service right knee symptoms. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 5. After all pertinent evidence has been associated with the claims file, obtain an addendum opinion addressing the etiology of the Veteran's right knee disability. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. If the Veteran's entrance examination is not located, or is located and is clinically normal with respect to the right knee, please address the following: Is there clear and unmistakable (undebatable) evidence that a right knee disability preexisted the Veteran's active duty service? If a right knee disability clearly and unmistakably preexisted service, is there clear and unmistakable (undebatable) evidence that the disability was not aggravated by service beyond its natural progression? If a right knee disability is not found to have clearly and unmistakably preexisted service, or there is not clear and unmistakable evidence that a preexisting disability was not aggravated during service, is it at least as likely as not (50 percent or greater probability) that the current right knee disability had its onset during the Veteran's period of active duty? If the Veteran's entrance examination reveals a right knee condition at service entrance, please opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right knee disability was aggravated (permanently increased in severity) beyond the natural progress of the disease during service. In addressing these questions, the examiner must comment on: (a) all pertinent STRs, including the diagnosis of right knee patellar pain syndrome in September 1980, the Veteran's follow-up visit for her right knee in October 1980, her complaint of knee pain in April 1981, and her report of trick or locked knee on her July 1989 report of medical history; (b) the February 1978 medical record which showed a complaint of knee pain for two weeks; (c) the Veteran's contention that she self-treated since service and did not see a physician due to economic reasons and depression; and (d) the February 2015 lay statement from J.P. noting that the Veteran lived with her for a couple of weeks after her discharge from service and when she arrived she was limping and complained of a sore knee, and that she continued to have swelling of her knee and pain when walking. The examiner must provide a robust rationale for any opinion furnished. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 6. Then, after taking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, provide the Veteran and her representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. 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 2014). _________________________________________________ S. BUSH 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) (2015).