Citation Nr: 1632391 Decision Date: 08/15/16 Archive Date: 08/24/16 DOCKET NO. 12-16 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for left knee disability. 2. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to February 13, 2012 and in excess of 70 percent from that date. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from May 2001 to October 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran's May 2012 VA Form 9 substantive appeal limited the appeal to the disabilities listed on the title page. The Board remanded the case to the RO in January 2016 for a Board videoconference hearing, which was conducted in June 2016. A transcript of the hearing is associated with the claims folder. The Board notes that the RO denied service connection for left knee disability in July 2005. The Veteran did not perfect an appeal after that decision was issued, and new and material evidence was not received within one year of notification of the decision. If at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding 38 C.F.R. § 3.156(a) which otherwise would require new and material evidence to reopen the claim. 38 C.F.R. § 3.156(c) (2015). Relevant service treatment records were received in and/or after March 2010; the original claim for service connection for left knee disability must be reconsidered. The Board has accordingly recharacterized the issue regarding left knee disability as noted on the title page. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Concerning the claim for service connection for left knee disability, in November 2004, the Veteran claimed service connection for left knee disability, indicating that left knee problems began while he was in service in December 2001 and that he was treated for them from that time until his discharge in October 2004. In his August 2009 claim, he indicated that he has knee pain from jumping out of airplanes with the weight of a ruck sack while assigned to the 82nd Airborne Division. He stated that during the winter months, his left knee aches, and that it also sometimes locks when he is sitting. During the Veteran's June 2016 hearing, when he was asked if he injured his left knee in service, he indicated that during service, as part of the normal duties of his job, he was airborne, so he jumped out of airplanes with heavy amounts of weight. He indicated that he has been granted service connection for right knee disability, which the record reflects is degenerative joint disease, and that he has the same symptoms in his left knee. The Veteran appears to have been testifying in June 2016 that he did not receive left knee treatment prior to 2009 because of where he was living. He indicated that he moved in 2009 and then started receiving treatment. The record shows a brief period of VA treatment in the Miami, Florida area from November 2004 to August 2005, and then no other treatment is shown until VA treatment in the Atlanta, Georgia area in 2009. Left knee disability was claimed but not examined for in November 2004, and it was again claimed in August 2009, and left knee degenerative joint disease was subsequently diagnosed on VA examination in February 2012. The examiner at that time opined that it was not related to service as service treatment records were negative for documentation of chronic left knee problems and post service medical records were negative for documentation of chronic left knee problems. The examiner neglected to take into consideration that the Veteran had claimed service connection for left knee disability in November 2004, in the month following his October 2004 service discharge, and other statements from the Veteran which are now of record, including those mentioned above. In light of the information which is now of record, the Board finds that a VA examination as indicated below is necessary in order to assist the Veteran with this claim as required by 38 C.F.R. § 3.159. Medical records are not the only form of evidence which should be considered by a VA examiner. Lay evidence should be considered as well. Concerning the appeal for an increased rating for PTSD, during his June 2016 hearing, the Veteran testified that he received VA treatment through 2014, and that he was interested in more VA treatment and was not sure why prior treatment ended. His representative advised that he was going to help him obtain VA treatment again. VA medical records which have been uploaded to VVA and VBMS are from prior to September 2013. In light of the Veteran's testimony, it would appear that there are additional VA medical records outstanding. Those records are constructively of record and should be obtained prior to a final decision on the claim. 38 C.F.R. § 3.159. As the most recent VA psychiatric examination was in February 2012, another VA psychiatric examination should also be obtained on remand, to determine the current extent and severity of the Veteran's PTSD. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain all VA medical records of treatment which the Veteran has received since June 2013. 2. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the likely etiology of his currently diagnosed left knee degenerative joint disease. All testing deemed necessary by the examiner should be performed and the results reported in detail. The claims folder must be available for review by the examiner in conjunction with the examination. Based on the examination and review of the record, the examiner should address the following: (a) Is it at least as likely as not (50 percent or higher degree of probability) that the current left knee degenerative joint disease was incurred in or aggravated by service, including in connection with the Veteran's normal duties jumping with heavy weight as an airborne service member? The examiner should furnish detailed reasons for such opinion. The examiner should consider, and discuss as necessary, the statements from the Veteran which are of record, including in his November 2004 and August 2009 claims, and in his June 2016 hearing transcript, as pertinent, and any pertinent medical principles. A complete rationale must be provided for the opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Schedule the Veteran for an appropriate VA examination to determine the nature, extent, and severity of his service-connected PTSD. The claims folder and copies of all pertinent records should be made available to the examiner. All indicated tests should be performed. The examiner is requested to delineate all symptomatology associated with, and the current severity of, the service connected PTSD. The appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose, if possible. 4. Thereafter, readjudicate the Veteran's pending claims in light of any additional evidence added to the record. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ M. E. LARKIN 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).