Citation Nr: 1751837 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 12-35 289 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability, to include as secondary to a right knee disability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD T. Booker, Associate Counsel INTRODUCTION The Veteran had active service from May 1964 to February 1966. The case was originally before the Board on appeal from a December 2011 rating decision of the St. Paul, Minnesota Department of Veterans Affairs (VA) Regional Office (RO). In February 2015, the Board issued a decision which, in pertinent part, denied service connection for right and left knee disabilities. The Veteran appealed this decision to the United States Court of Appeals for Veteran's Claims (Court). In March 2016, the Court issued an order that, in pertinent part, granted a Joint Motion for Partial Remand (JMPR) vacating the portion of the February 2015 Board decision which denied entitlement to service connection for left and right knee disabilities, for action consistent with the terms of the Joint Motion. In November 2016, the Board remanded these matters for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board remanded the claim in November 2016, instructing the AOJ to schedule the Veteran for a VA medical examination in order to ascertain the nature and likely etiology of his bilateral knee disabilities. The Board instructed the examiner to provide responses to specific questions. The Veteran was examined as directed in February 2017; however, the VA examiner did not fully address the questions presented by the Board. Hence, this case must be remanded for a supplemental opinion from the February 2017 VA examiner, if available. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the examiner did not address whether the right knee disability clearly and unmistakably existed prior to entrance to active duty service, whether any pre-existing right knee disability underwent a permanent or chronic increase in severity during the Veteran's period of active duty, or whether if there was an increase in severity while on active duty of any preexisting right knee disability, the increase was due to the natural progression of the condition. Accordingly, the case is REMANDED for the following actions: (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. Obtain any outstanding records pertinent to the Veteran's claim, to include updated VA treatment records. 2. Forward the claims file to the February 2017 VA examiner, or a similarly qualified physician, for a supplemental opinion. Following that review the examiner must address the following: a) As to each right knee disability found, did it clearly and unmistakably (obviously, manifestly, undebatably) exist prior to entrance to active duty service? Please consider and discuss the examiner's notation in the report of medical history at service induction of "knee trouble-tender tibial tubercle" and the November 1966 treatment record which noted "P[atien]t had first trauma to the right knee playing football in 1953 [prior to service]. He was tackled from the right side and had so much pain he had to be carried off the field. His knee was bandaged and he limped around on it. Pt then used a knee brace for sports. Since this time pt had episodes of right knee giving way usually about 1 X / month." b) If it is clear and unmistakable that the appellant had a right knee disability prior to his entry into active duty in May 1964, is it at least as likely as not (i.e., is it 50 percent or more probable) that the disability underwent a permanent or chronic (as opposed to a temporary or transient) increase in severity during his period of active duty from May 1964 to February 1966? c) If it is clear and unmistakable that the appellant had a right knee disability prior to his entry onto active duty in May 1964, and it is at least as likely as not that the disability underwent a chronic or permanent increase in severity during the period of active duty from May 1964 to February 1966, is it clear and unmistakable that any increase in severity during that period of service was due to the natural progress of the condition? d) If a right knee disability did not clearly and unmistakably exist prior to the appellant's entry into active duty in May 1964, please assume that the Veteran entered active duty service in sound health as to his right knee (as required by legal operation of the presumption of soundness) and opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed knee (right and left) disability was caused by active duty service and whether it is at least as likely as not that arthritis of the right knee manifested within a year of service (prior to February 1967). e) If it is determined that the Veteran has a right knee disorder which was incurred or aggravated during his active duty service, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's left knee disorder was aggravated (permanently worsened) by the Veteran's service-connected right knee disability. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. In providing these opinions, the examiner is requested to consider and address as necessary the STRs, post-service VA and private treatment records and examination reports, and specifically comment on the Veteran's competent assertions regarding his in-service knee symptoms and post-service continuity of such symptoms. If the examiner determines an additional physical examination of the Veteran is needed, one is to be arranged. Any clinically indicated testing and/or consultations should be performed. A complete rationale must be provided for all opinions offered, including a discussion of the evidence of record and medical principles which led to any conclusion reached. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 3. After ensuring compliance with the above, readjudicate the claims. If any benefit sought remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his attorney the opportunity to respond. The case should then be returned to the Board for further review. 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. §§ 5109B, 7112 (West 2012). ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs