Citation Nr: 1626079 Decision Date: 06/29/16 Archive Date: 07/11/16 DOCKET NO. 13-08 530 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a right knee disorder, to include a right knee strain with degenerative joint disease. 2. Entitlement to service connection for a left knee disorder, to include a left knee strain with degenerative joint disease. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Skiouris, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1974 to December 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2012, rating decision of the Denver, Colorado, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a timely notice of disagreement in June 2012. The RO issued a statement of the case (SOC) in March 2013. The Veteran subsequently perfected his appeal with a VA Form 9 in March 2013. In March 2016, a Video Conference Board hearing was held before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the Veteran's claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran's service treatment records reveal an in-service event in January 1976. In the report of accidental injury, the Veteran reported slipping on ice and his coat getting stuck in the tailgate of a truck. He reported, that the driver of the truck did not see him and began driving, thereby dragging the Veteran roughly 180 feet. Immediately thereafter, in a January 1976 follow up treatment note, the Veteran reported pain radiating down his back and into his leg. In another January 1976 treatment note the Veteran reported pain in his right knee, and shooting pain. In a follow up evaluation of his knees in February 1976, the Veteran was noted as having slight crepitation with flexion and extension, and tenderness, and was assessed as having tendonitis, and was instructed to perform straight leg raise exercises. According to private treatment records from the North Colorado Orthopedic Associates, the Veteran sought treatment in July 2009 for left knee pain, and the impression was of left knee derangement with a medial meniscal tear. In a November 2009 treatment record, he was diagnosed with right knee, probable chondromalacia. In the June 2012 notice of disagreement, the Veteran reported his knee problems date back to his initial visit to sick call during service, and that he suffered wear and tear to his knees during service. In the March 2013 formal appeal, the Veteran reported that his initial injury was the in-service injury to his knees, and he was using over the counter medication, creams and wraps to self-treat his knees, until the prior 2 to 3 years, when his pain worsened and he began seeking treatment at the Fort Collins Outpatient Clinic. According to the Veteran's testimony at the March 2016 Board hearing, the Veteran reported the in service injury of tripping over a bomb rack, and a later occurrence as him being dragged down the street by a truck injuring his back and knees. He reported treatment with aspirin and wearing knee braces. He also reported that during service he would jump in and out of intakes of aircrafts, and would have to jump up and crawl on his knees to perform his duties. The Veteran reported that following discharge from service, he was walking down a wheelchair ramp, took a step and suddenly felt like his right knee was shot and the pain shot up to his head. He reported then falling to the ground. The Veteran reported that he believed the incident occurred because his knee had become weak as a result of the in-service injuries. With regard to the left knee, the Veteran reported treating his knee with the same treatment modalities as the right knee, over the counter pain medication, wearing a brace, and applying cream. The Veteran contends that the initial injuries during service led to the subsequent injuries following service, and the diagnoses and symptoms he currently experiences in his left and right knee. Here, the Veteran was afforded a VA examination in April 2012, at which time the Veteran reported knee problems dating back to service. X-rays revealed degenerative joint disease. The VA examiner diagnosed left knee strain, right knee strain, and bilateral degenerative arthritis. The examiner concluded that the Veteran's bilateral knee condition is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale was that while the Veteran sought treatment during active duty for both knees, "both seemed to be unimpressive, self-limited affairs." The examiner went on to note that the Veteran did not report or seek follow up consultations for either knee, or report a knee condition on discharge. The Board notes, the medical examiner did not make a clear conclusion with supporting data. The medical examiner's rationale of "seemed to be unimpressive, self-limited affairs," is speculative, and inconclusive. Additionally, the Board is unable to ascertain if the medical examiner considered the Veteran's statements describing his account of having sustained injury to his knees in-service, and his statements describing his symptoms of recurrent pain in both knees following discharge, and the Veteran's reports of self-treatment for his knee symptoms. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-01 (2008) (holding that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). Accordingly, the Board is of the opinion that further medical guidance is required in order to determine the nature and etiology of any right and left knee conditions that the Veteran currently has. Given the above, the Board finds that VA's duty to provide a VA examination and obtain a medical opinion has been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (stipulating that VA's duty to assist veterans, pursuant to the Veterans Claims Assistance Act of 2000, includes the duty to obtain a medical examination and/or opinion when necessary to make a decision on a claim). Ongoing VA medical records should also be obtained. See 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file all ongoing federal treatment records. All efforts to obtain VA records should be fully documented. The federal facility must provide a negative response if records are not available, and notice to the Veteran of the inability to obtain these records must comply with 38 C.F.R. § 3.159(e). 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private records. If any of the requested private records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. Allow the Veteran an appropriate amount of time to respond. 3. After any outstanding federal and private treatment records are associated with the claims file, schedule the Veteran for an examination regarding his right and left knees. The entire claims file, to include a complete copy of this REMAND must be made available to the physician designated to examine the Veteran and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. Following a review of the claims file, the reviewing examiner should provide an opinion for the following questions: (a) Given the particulars of this Veteran's medical history, is it at least as likely as not (50 percent probability or greater) that any injury sustained, by the Veteran during service, has caused or resulted in any current right knee disorder, to include right knee strain with degenerative joint disease, that the Veteran now has? (b) Given the particulars of this Veteran's medical history, is it at least as likely as not (50 percent probability or greater) that any injury sustained, by the Veteran during service, has caused or resulted in any current left knee disorder, to include left knee strain with degenerative joint disease, that the Veteran now has? The examiner is asked to consider the Veteran's account of: (1) having tripped over a bomb rack; (2) being dragged from the back of a truck; (3) the physicality of jumping in and out of aircraft intakes, and of repeated crawling on his knees, while performing his military occupational specialty; and (4) the January 1976 report of accidental injury, and the service treatment records documenting in-service in January and February of 1976. In making the above assessments, the examiner is asked to discuss whether there is a medically sound basis to attribute any current diagnosis of a right and/or left knee disorder (that the Veteran now has), to any or all of the purported in-service accounts as described by the Veteran, and/or to the treatment noted during service in January and February of 1976. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history and the relevant medical sciences that apply to this case, which may reasonably explain the medical guidance in the study of this case. 4. Thereafter, the AOJ must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5. Following the completion of the foregoing, readjudicate the issues of service connection right and left knee disorders. If the benefits sought on appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case and be allow an appropriate period of time for response. The appellant 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 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). _________________________________________________ DEBORAH W. SINGLETON 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).