Citation Nr: 1755025 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 08-37 687 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from August 1960 to August 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. This case was previously remanded by the Board in July 2012, December 2014 and March 2017. The case has been returned to the Board for review. In January 2016, the Board denied the Veteran's claim for entitlement to service connection for a right knee disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and the Court granted an October 2016 Joint Motion for Remand (JMR), vacated the January 2016 Board decision and remanded the issue to the Board for readjudication. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that the matter on appeal must be remanded for further development before a decision may be made on the merits. In the October 2016 JMR, the parties agreed that the July 2015 request to the National Personnel Records Center (NPRC) was deficient as it failed to request records of in-service hospital treatment in Hohenfels, Germany for the entire relevant period of time, i.e., from January 19, 1961 to August 13, 1963. Thus, the Court remanded the Veteran's claim in order to attempt to obtain any outstanding records. In addition, the October 2016 JMR stated that "the Board should ensure that the AOJ request from official sources any relevant accident reports or unit records during this time frame." In March 2017, the Board remanded the Veteran's claim pursuant to the October 2016 JMR. The March 2017 remand requested that the RO contact the appropriate record depository in order to obtain records of treatment the Veteran may have received from the military hospital in Hohenfels, Germany from January 19, 1961 to August 13, 1963. However, the RO was not directed to request any relevant accident reports or unit records during this time frame as directed by the October 2016 JMR. As such, the Board finds that a remand is necessary in order to comply with the October 2016 JMR. Additionally, VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103 (d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong may be satisfied by lay evidence of continuity or equivocal or non-specific medical evidence). "The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation." Id. at 83. In this case, a July 2014 VA treatment record reflects that the Veteran has a current diagnosis of degenerative changes to his right knee. In addition, the VA treatment records reflect that the Veteran has chronic right knee pain. In a December 2008 statement the Veteran noted that he continued to have right knee pain since service which resulted in a right knee surgery in the 1980's. The Veteran further stated that while serving in Germany he was a motor courier and was involved in a jeep accident and suffered injuries to his knees. See VA Form 21-4138 Statement in Support of Claim received December 2008. The Veteran's military personnel records reflect that he was stationed in Germany from January 1961 to August 1963 and served as a light truck driver. Private treatment records reflect that the Veteran underwent surgery for a right knee medial meniscal tear in February 1989. Together, this evidence indicates that he Veteran's current knee disability may be related to his active military service. As such, the low threshold for provision of a VA examination has been met. See McLendon, 20 Vet. App. at 81. Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center (NPRC) and any other appropriate facility to request accident reports and unit records that refer to a jeep accident involving the Veteran between January 1961 and August 1963. All efforts to locate such records must be documented in the claims folder and the Veteran notified accordingly to any negative response. 2. After the above development, schedule the Veteran for a VA examination to determine the nature and etiology of any right knee disability, to include degenerative changes. Provide a copy of this Remand and the record for the examiner to review. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: a) Provide a diagnosis for any right knee disability demonstrated since service, found on current examination or in the record. b) For each right knee disability, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the condition had its onset during the Veteran's service or is otherwise etiologically related to the Veteran's service. The examiner should indicate that the record was reviewed. A complete rationale should be provided for the opinion given. 3. After completion of the above, review the expanded record, including evidence entered since the most recent supplemental statement of the case, and determine whether service connection may be granted. If entitlement to service connection for a right knee disability remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 (2012). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).