Citation Nr: 1752920 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 14-05 333 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and K.K., observer ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty for training from June 1963 to December 1963. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In February 2017, the Veteran testified during a Board hearing by videoconference. The Board notes that a November 1992 rating decision denied a claim for service connection for a right knee disorder. The Veteran was notified of the decision and of his appellate rights, but he did not initiate an appeal. Thus, that rating decision became final, and new and material evidence is generally required to reopen the claim. However, as additional service treatment records pertinent to the claim were added to the claims file in May 2012, the submission of new and material evidence is not needed. Thus, the claim will be considered as a claim for service connection. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran asserts that he has a right knee disorder due to an in-service injury. At the Board hearing, he testified that he has had problems with the right knee since the in-service injury. June 1963 service treatment records show that the Veteran twisted the right knee during hand-to-hand combat exercises. They also show a history of a prior football injury. [An August 1962 report of medical history at the time of enlistment does not reflect any knee problems and examination at that time revealed a normal right knee.] X-rays were negative. There are no further complaints of or treatment for a right knee disorder during active service. Post service, June 2006 private treatment records show a history of chronic right knee problems since the teenage years, an August 2012 private treatment record indicates the presence of arthritis in the right knee, and a January 2014 MRI of the right knee shows a large lateral meniscal tear, lateral joint compartment chondrosis, and effusion. Given the documented injury to the right knee in active service, MRI findings of current disability, and the Veteran's assertion as to a continuity of symptoms since active service, the AOJ should afford him a VA examination to obtain an opinion on whether a right knee disorder had its onset in or is causally related to active service, to include the documented injury. As the service treatment records indicate a pre-service football injury to the right knee, the AOJ should also obtain an opinion on whether any preexisting right knee disorder was aggravated by active service. Prior to the examination, the AOJ should ask the Veteran to provide the name of any healthcare provider who has treated him for his right knee disorder since the issuance of the January 2015 supplemental statement of the case. The AOJ should attempt to obtain any adequately identified records. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to provide the name of any healthcare provider who has treated him for his right knee disorder since the issuance of the January 2015 supplemental statement of the case. Obtain any adequately identified records. 2. Schedule the Veteran for a VA examination to determine the etiology of his right knee disorder. The examiner should review the claims file and note that review in the report. The examiner should ensure that all indicated tests and studies are conducted. The examiner should provide a complete rationale for all conclusions. The examiner should address the following. (a) Does the Veteran have a right knee disorder which clearly and unmistakably (undebatably) existed prior to entrance to active service? If so, is it clear and unmistakable (undebatable) that the preexisting right knee disorder was not aggravated during active service? If the disorder underwent any increase in disability, was that increase in disability due to the natural progress of the disorder? The Veteran's lay testimony alone is not a sufficient basis to determine that he clearly and unmistakably had a right knee disorder that preexisted entrance to active service. (b) If the right knee disorder is not found to have clearly and unmistakably existed prior to active service, is it at least as likely as not (50 percent or greater probability) that the disorder had its onset during active service or within one year thereafter, or is otherwise causally related to such service, to include the June 1963 injury? 3. Then, readjudicate the claim. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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). _________________________________________________ THOMAS H. O'SHAY 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) (2016).