Citation Nr: 1754736	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  12-24 558	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim for service connection for right knee disability, and if so, entitlement to service connection for right knee disability.

2. Whether new and material evidence has been received to reopen a claim for service connection for kidney disease, and if so, entitlement to service connection for kidney disease.

3. Entitlement to service connection for left knee disability.

4. Entitlement to service connection for back disability.

5. Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Christopher J. Boudi, Attorney


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel


INTRODUCTION

The Veteran served on active duty from March 1979 to March 1982. He also had National Guard service.

These matters come before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.

The issues of service connection for kidney disease and a low back disability are addressed in the REMAND portion of the decision below, and are REMANDED to the Agency of Original Jurisdiction, in this case the RO.


FINDINGS OF FACT

1. The Veteran did not file a substantive appeal with the denial, in the September 2009 rating decision, of reopening of a previously denied claim for service connection for right knee disability.

2. Evidence received since the September 2009 rating decision addresses the likelihood of a connection between right knee problems during service and right knee problems after service.

3. The Veteran sustained right knee injury during service that led to post-service right knee disability.

4. The Veteran did not file a timely notice of disagreement with the denial, in the January 2014 rating decision, of service connection for kidney disease.

5. Evidence received since the January 2014 rating decision addresses the likelihood that kidney disease due to a congenital sickle cell trait was aggravated during the Veteran's service.

6. The Veteran sustained left knee injury during service that led to post-service left knee disability.

7. Hearing thresholds in either ear did not shift for the worse during service, and disabling hearing impairment in either ear did not become manifest during service or the year following service.

8. Bilateral hearing loss found years after service is not related to noise exposure or other events in service.


CONCLUSIONS OF LAW

1. The September 2009 denial of reopening of a previously denied claim for service connection for right knee disability is a final decision. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.156 (2017).

2. Evidence received since the September 2009 rating decision is new and material to the claim for service connection for right knee disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156.

3. Right knee disability was incurred in service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017).

4. The January 2014 denial of service connection for kidney disease is a final decision. 38 U.S.C. § 7105; 38 C.F.R. § 3.156.

5. Evidence received since the January 2014 rating decision is new and material to the claim for service connection for kidney disease. 38 U.S.C. § 5108; 38 C.F.R. § 3.156.

6. Left knee disability was incurred in service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303.

7. Bilateral hearing loss was not incurred or aggravated in service, and is not presumed to be service-connected. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. § 3.303, 3.307, 3.309, 3.385 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Right Knee Disability

The Veteran contends that during service he sustained right knee injury, and that right knee disability continued after service. In an October 1993 rating decision, the RO denied service connection for right knee disability. A rating decision becomes final when a claimant does not file a notice of disagreement (NOD) within one year after a decision is issued. 38 U.S.C. § 7105. A rating decision also becomes final if a claimant files a timely NOD, but does not file a timely substantive appeal. 38 U.S.C. § 7105. The Veteran did not file an NOD with the October 1993 rating decision, and that decision became final.

A final decision on a claim that has been denied shall be reopened if new and material evidence with respect to that claim is presented or secured. 38 U.S.C. §§ 5108, 7104(b). The United States Court of Appeals for Veterans Claims (Court) has ruled that, if the Board determines that new and material evidence has been submitted, the case must be reopened and evaluated in light of all of the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New and material evidence received within a year after the rating decision will be considered as having been filed in connection with the claim. 38 C.F.R. § 3.156(b). If service department records not previously associated with the claims file are received, VA will reconsider the claim. 38 C.F.R. § 3.156(c). 

In April 2009, the Veteran filed a request to reopen a claim for service connection for right knee disability. In a September 2009 rating decision, the RO denied reopening of the claim. The Veteran filed an NOD with the September 2009 rating decision. The RO issued a statement of the case (SOC) on that issue. The Veteran then filed a substantive appeal that addressed other issues, but not the issue of service connection for right knee disability. As he did not file a timely substantive appeal on the right knee disability issue, the September 2009 rating decision became final as to that issue.

In August 2015, the Veteran requested to reopen a claim for service connection for right knee disability. In a June 2016 rating decision, the RO denied reopening of the claim. The Veteran appealed the June 2016 rating decision.

In order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the last time that the claim was finally disallowed on any basis (not only since the last time that the claim was disallowed on the merits). Evans v. Brown, 9 Vet. App. 273 (1996). The September 2009 rating decision is the most recent final decision on the right knee disability service connection issue. The Board will consider whether new and material evidence has been submitted since that decision.

New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).

The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, supra, at 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Court has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection for certain chronic diseases, including arthritis, may be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Aggravation of a non-service-connected disease or injury by a service-connected disability may also be service-connected. 38 C.F.R. § 3.310(b).

The evidence that was of record in September 2009 includes service treatment records, post-service treatment records, reports of VA medical examinations, and statements from the Veteran. Service treatment records reflect treatment for problems involving both his left and right knees. In 1993, several years after service, he had right knee arthroscopy. In the October 1993 rating decision denying service connection for right knee disability, the RO official noted evidence that right knee problems during service resolved in service. The official concluded that right knee problems found in 1993 were not related to injuries during service.

The evidence that has been added to the file since September 2009 includes more recent medical evidence and opinion. In May 2014, VA physician D. H. R., M.D., wrote that the Veteran was in VA treatment for disorders affecting both knees. Dr. R. expressed the opinion that it was more likely than not that his current pain and degenerative changes in both knees were related to knee injuries that he sustained during his service. In September 2015, private physician J. F., M.D., reported having reviewed the Veteran's claims file. Dr. F. expressed the opinion that injuries of the Veteran's right knee during service more probably than not resulted in meniscal damage and disability that continued after service.

The opinions of Drs. R. and F. address the likelihood of a connection between right knee problems during service and right knee problems after service. The new evidence thus relates to an unestablished fact necessary to substantiate the claim for service connection for right knee disability. Considered together with earlier evidence, the new evidence raises a reasonable possibility of substantiating the claim. Thus, there is new evidence that is also material. The Board grants reopening of the claim.

Having reopened the claim, the Board must consider service connection on its merits. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

During service, the Veteran sought and received medical treatment on numerous occasions in 1980 and 1981 for knee symptoms such as pain, swelling, and locking. In some instances he reported that the symptoms followed injuries sustained while playing basketball. Inconsistencies between, and sometimes within, some of the treatment records leave questions as to whether the injuries and symptoms described in the records affected the left knee or the right knee. Some treating clinicians considered or found meniscus tears. Some clinicians considered surgery. The records are unclear as to whether surgery was performed.

In June 1983, about a year after the Veteran's separation from active service, he had medical screening for National Guard service. He reported a history of hospital treatment for torn knee cartilage. On examination, no substantial knee disability was found.

In June 1986, the Veteran sought VA treatment for pain and occasional swelling in his right knee. 

In VA treatment in March 1993, the Veteran reported a history of right knee injury in 1980. He indicated that since that injury he had experienced right knee pain intermittently. He related having chronic right knee pain for the last two years. He indicated that he had refused surgery earlier, but now was willing to have surgery. In May 1993, he had right knee arthroscopy, which showed a complex tear of his lateral meniscus. The surgeon partially debrided the torn meniscus. 

On VA examination in July 1993, the examiner noted the Veteran's recent right knee arthroscopic surgery. The examiner observed that the knee had effusion and mild tenderness. 

In an August 2010 statement, the Veteran wrote that he was treated for right knee problems during service. Records of VA treatment of the Veteran in 2013 through 2015 reflect ongoing treatment for bilateral knee pain.

In May 2014, VA physician D. H. R., M.D., wrote that the Veteran was in VA treatment for disorders affecting both knees. Dr. R. reported that the Veteran presently had degenerative joint disease and meniscal disease in both knees. Dr. R. stated that medical reports from the Veteran's service in 1980 and 1981 showed knee injuries consistent with his current disorders. Dr. R. expressed the opinion that it was more likely than not that his current knee pain and degenerative changes were related to knee injuries that he sustained during his service.

In September 2015, private physician J. F., M.D., reported having reviewed the Veteran's claims file. Dr. F. discussed service and postservice medical records in detail. He concluded that the service medical records showed injuries of both knees. He noted that the records did not show serious injury of either knee after service. Dr. F. expressed the opinion that injuries of the Veteran's right knee during service more probably than not resulted in meniscal damage, and that right knee disability incurred in service continued after service.

Physicians have found that the Veteran has current right knee disability, including arthritis and meniscal disease. The service treatment records include some confusing entries, but the multiple notations of right knee injury are sufficient to establish that he sustained right knee injury in service. Drs. R. and F. each reviewed records, and each supported an equivocal or better likelihood that right knee injury in service led to the post-service and current right knee disability. Considered together, the evidence at least equivocally supports service incurrence and service connection of current right knee disability.


Kidney Disease

In September 2013 the Veteran submitted a claim for service connection for kidney disease. In a January 2014 rating decision, the RO denied service connection for kidney disease. The RO official concluded that the Veteran had not had kidney disease during service, and that his present kidney disease was found after service and was not related to any disease, injury, or events during service.

In February 2014 the Veteran submitted an NOD with the January 2014 rating decision. He wrote that the issue with which he disagreed was the denial of service connection for hearing loss. He did not express disagreement with the denial of service connection for kidney disease. As he did not file a timely NOD with respect to the kidney disease issue, the January 2014 denial became final.

Later, in September 2015, the Veteran, through his representative, submitted new evidence, and requested reopening of a claim for service connection for kidney disease. The January 2014 rating decision is the only decision regarding service connection for kidney disease that became final. The Board therefore will consider whether new and material evidence has been received since that decision. 

The evidence that was of record in January 2014 includes the Veteran's claim and medical records from during and after his service. The evidence that has been added to the record since January 2014 includes additional medical records and opinion. In September 2015, Dr. F., a private physician, who reviewed the Veteran's records, concluded that the Veteran had nephropathy due to congenital sickle cell trait. He expressed the opinion that, more probably than not, the Veteran's service activities aggravated his nephropathy. Dr. F.'s opinion relates to an unestablished fact necessary to substantiate the claim for service connection for kidney disease. That new evidence raises a reasonable possibility of substantiating the claim. Thus, there is new evidence that is also material. The Board grants reopening of the claim.

Having reopened the claim, the Board must consider service connection on its merits. The Board finds it necessary, however, to remand the claim for further development, as explained in the remand section, below.

Left Knee Disability

In April 2009, the Veteran submitted a claim for service connection for disabilities of his left and right knees. In a September 2009 rating decision the RO denied service connection for disabilities in his left and right knees. He initiated and completed an appeal of the denial of service connection for left knee disability. He contends that he sustained left knee injury during service and that he has continued to have left knee disability since the injury in service.

During service, in March 1980, the Veteran sought treatment for injury to his left knee. McMurray's sign was positive. The treating clinician's impression was a medial cartilage injury. In treatment in May 1980, the Veteran reported a one month history of left knee pain. In October 1980 he was treated for left knee pain and swelling. He reported a history of left knee injury. He stated that recently, with increased running, swelling and tenderness had developed in that knee. The treating clinician's impression was probable medial meniscus tear. In December 1980 it was noted that his left knee was locked. In January 1981 arthrogram of the left knee showed that the posterior horn of the left medial meniscus was shorter than usual, but was of regular configuration. Later in January 1981 an orthopedist noted a tear of the left medial meniscus, and indicated that surgery would be scheduled. In treatment in May 1981, the Veteran reported having left knee problems since injuries in 1979 and 1980. The treating clinician found positive drawer sign in both knees. In June 1981 and February 1982 medical histories, the Veteran checked yes for history of trick or locked knee. He indicated that in 1980 he had a torn meniscus that was treated with traction.

After the Veteran's separation from active service, on National Guard medical screening in 1983, he reported a history of treatment for torn knee cartilage. On examination no substantial knee disability was found.

In April 2009, the Veteran submitted a claim for service connection for disabilities of the left and right knees. In an August 2010 statement, he wrote that he was treated for left knee problems during service. Records of VA treatment of the Veteran in 2013 through 2015 reflect ongoing treatment for bilateral knee pain. 

In May 2014, VA physician Dr. R. wrote that the Veteran was in VA treatment for degenerative joint disease and meniscal disease in both knees. Dr. R. stated that medical reports from the Veteran's service in 1980 and 1981 showed knee injuries consistent with his current disorders. Dr. R. expressed the opinion that it is more likely than not that his current knee pain and degenerative changes are related to knee injuries that he sustained during his service.

On VA examination in August 2015, the examiner noted that the Veteran had a tear of the left meniscus in 1980, and left knee arthroscopy in 2013. The examiner stated that the Veteran currently had left knee arthritis. The examiner expressed the opinion that it is less likely than not that the Veteran's current left knee disability is related to injury in service. He explained that the evidence did not show continuity of left knee problems from service through the present.

In September 2015, private physician Dr. F. discussed the Veteran's service and postservice medical records in detail. Dr. F. concluded that the service medical records showed injuries of both knees. He noted that the records did not show serious injury of either knee after service. He expressed the opinion that it is more probable than not injuries of the Veteran's left knee during service resulted in meniscal damage and to disability that continued after service.

Physicians have found that the Veteran has current left knee disability including arthritis and meniscal disease. The service treatment records include some confusing entries, but the numerous notations of left knee injury are sufficient to establish that he sustained left knee injury in service. Drs. R. and F. each reviewed records, and each supported an equivocal or better likelihood that left knee injury in service led to the post-service and current left knee disability. Considered together, the evidence at least equivocally supports service incurrence and service connection of the current left knee disability.


Hearing Loss

In September 2013 the Veteran submitted a claim for service connection for hearing loss. In a January 2014 rating decision the RO denied service connection for hearing loss. The Veteran appealed that decision. He contends that his current hearing loss is related to noise exposure during service.

Organic diseases of the nervous system, including sensorineural hearing loss, are among the listed chronic diseases for which service connection may be presumed if the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from service. See 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309.

For VA disability benefits purposes, impaired hearing is considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Court has held that 38 C.F.R. § 3.385 does not preclude service connection for current hearing disability where hearing was within normal audiometric testing limits at separation from service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Court explained that, when audiometric test results do not meet the regulatory requirements for establishing a "disability" at the time of a veteran's separation, the veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. Id. at 160. In addition, the Court cited a 1988 medical treatise that stated that the threshold for normal hearing is from 0 to 20 decibels, and that higher thresholds indicate some degree of hearing loss. Id. at 157.

On audiological evaluation of the Veteran in March 1979, for entrance into service, at the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, none of the puretone thresholds was greater than 20 decibels. On testing in January 1980, at the relevant frequencies none of the thresholds was greater than 20 decibels. On testing in June 1981, at the relevant frequencies none of the thresholds was greater than 20 decibels. The Veteran's  service treatment records are silent for any complaints regarding his ears or hearing. In a medical history completed in February 1982, for separation from service, he checked no for any history of ear trouble or hearing loss. On testing in February 1982, for separation from service, at the relevant frequencies none of the thresholds was greater than 20 decibels. The examiner checked normal for the condition of the Veteran's ears.

After the Veteran's separation from active service, on testing in June 1983, for National Guard service, at the relevant frequencies none of the thresholds was greater than 20 decibels. 

Records of VA treatment of the Veteran in 1984 through 2009 are silent for any complaints regarding the ears or hearing. In September 2013, he had a VA audiology consultation. He reported difficulty hearing when he was not looking at the speaker and difficulty hearing voices over the telephone. He stated that he had been told that he spoke loudly. He reported that he had been aware of these difficulties for five or six years. He related that during service he was an armor specialist and tank gunner. He stated that he used hearing protection devices during those duties. He related that after service he had noise exposure in work in construction and factories, and that he used hearing protection devices in those types of work. On testing, the examiner found that the Veteran had in both ears mild sensorineural hearing loss at frequencies of 2000 Hertz and higher. In October 2013, the Veteran was fitted with hearing aids.

On VA examination in December 2013, the Veteran reported that, beginning eight to nine years before the 2013 examination, he noticed progressive difficulty hearing. He stated that in conversation he had difficulty hearing and needed repetitions. He also related difficulty hearing in the presence of competing noise. He reported that in his service duties as an armor crewman he was exposed to noise from gun fire, tank fire, explosions, and engine noise.

On audiological evaluation, puretone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
25
20
35
35
30
LEFT
30
25
35
40
30

On testing speech discrimination was 88 percent in the right ear and 80 percent in the left ear. The examining audiologist found that the Veteran had bilateral sensorineural hearing loss.

The examiner reported having reviewed the Veteran's claims file. The examiner found that the Veteran did not have hearing loss before he entered service. The examiner stated that during the Veteran's service there was not a permanent positive threshold shift in either ear. For each of the Veteran's ears, the examiner expressed the opinion that it is less likely than not that the current hearing loss is related to the noise exposure or other events during service.

In a February 2014 NOD, the Veteran wrote that during service he had duties in artillery. He asserted that his hearing was damaged while he was in the Army, and that it had progressively worsened since then. He stated that during National Guard and Reserve service he was a tower gunner. He indicated that after service he worked as a locomotive engineer.

The Veteran did not have disabling hearing impairment when tested during service or a little more than a year after separation from service. He did not have a permanent positive threshold shift in either ear during service. As disabling hearing impairment was not noted during the year following his separation from service, there is no basis to presume service connection of the hearing loss found later. By the Veteran's own account, it was about twenty years after service when he began to notice difficulty hearing. Considering the hearing levels recorded during and after service, and the 2013 examining audiologist's clear and reasonably explained opinion, the preponderance of the evidence is against a relationship between his noise exposure in service and his current hearing loss.


ORDER

A claim for service connection for right knee disability is reopened.

Entitlement to service connection for right knee disability is granted.

A claim for service connection for kidney disease is reopened.

Entitlement to service connection for left knee disability is granted.

Entitlement to service connection for bilateral hearing loss is denied.


REMAND

The Board is remanding to the RO, for the development of additional evidence, the claim, reopened above, for service connection for kidney disease, as well as the claim for service connection for a low back disability. 

Regarding the kidney disease, during service, the Veteran was found to have sickle cell trait, a congenital condition. Through private medical opinion that he has submitted, he contends that he has nephropathy that was aggravated during service. A private physician provided a lengthy opinion addressing several issues, but further explanation is needed regarding this part of his opinion. The physician stated that the level of the Veteran's renal dysfunction was not measurable at the time of his separation from service, because standard tests did not detect renal damage less than 50 percent loss of function. The physician did not explain the basis for his conclusion that any nephropathy present during the Veteran's service worsened beyond the natural progress of the disease. The Board therefore is remanding the issue to the RO to afford the Veteran an opportunity to submit additional evidence, including clarification from the opining physician addressing that question.

With respect to the low back disability, on VA examination in August 2015, the Veteran reported having low back pain. The examining physician reported having reviewed the Veteran's claims file. The examiner noted that in 1979 the Veteran was treated for strain after lifting an ammunition box. The examiner stated that treatment records from 2007 reflected degenerative disc disease. He also noted records of treatment in November 2010, which reflected the Veteran's report of a two year history of persistent low back pain. In the 2015 examination the Veteran had limitation of motion and pain with motion of his thoracolumbar spine. Muscle spasm was noted. The examiner found that presently the Veteran had thoracolumbar degenerative disc disease, and that the disorder was diagnosed in 2000. The examiner expressed the opinion that it is less likely than not that the current back disability was incurred in service. The examiner explained that the records did not clearly document continuous care for back problems from service through the post service years. The examiner also expressed the opinion that it is less likely than not that the Veteran's back disability is proximately due to or the result of disabilities of his knees. He explained that the Veteran did not have an abnormal gait that could have placed undue strain on his back. However, the August 2015 examiner did not provide an opinion on whether the Veteran's back disability was aggravated by his knee disabilities. See 38 C.F.R. § 3.310(b) (2017). The Board therefore is remanding the issue to the RO to obtain an addendum opinion addressing this question.  

Accordingly, the case is REMANDED for the following action:

1. Provide the Veteran and his representative an opportunity to submit additional evidence supporting the claim for service connection for kidney disease, including based on aggravation during service. Inform the Veteran and his representative that, in particular, they may submit clarification from Julian Freeman, M.D., as to Dr. Freeman's basis for his opinion that during the Veteran's service his kidney disease worsened beyond the natural progress of the disease.

2. Obtain an addendum opinion from the August 2015 VA examiner regarding the Veteran's low back disability. The file must be provided to and reviewed by the examiner. An examination should only be scheduled if the examiner determines that it is necessary. The examiner is requested to provide an opinion as to the following question:

Is it at least as likely as not (50 percent or greater probability) that the Veteran's low back disability was aggravated individually or in combination beyond its natural progression by the Veteran's service-connected right or left knee disabilities?

A complete rationale for all opinions expressed should be clearly provided.

3. After the Veteran has submitted additional evidence, has declined to do so, or the reasonable period provided for submitting additional evidence has passed, develop any other evidence deemed necessary.

4. Then review the expanded record and reconsider the remanded claim for service connection for kidney disease. If that claim remains denied, send the Veteran and his representative a supplemental statement of the case and give them an opportunity to respond before returning the case to the Board for further appellate consideration.

The Board intimates no opinion as to the ultimate outcome of the appealed matter. The Veteran has the right to submit additional evidence and argument on that matter. 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 (2012).




______________________________________________
JENNIFER HWA
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs