Citation Nr: 1755066 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 13-35 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right knee condition. 2. Entitlement to service connection for a left knee condition. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jonathan Z. Morris, Associate Counsel INTRODUCTION The Veteran had active military service from December 1977 to December 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Initially, a July 2011 rating decision denied service connection for right and left knee conditions. Subsequently, a July 2014 rating decision denied the Veteran's claim for a TDIU. In June 2017, the Veteran testified before the undersigned Veterans Law Judge at a live videoconference hearing. A transcript of the proceeding is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In service connection claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). In this case, as there is evidence of a current disability, as well as the fact that the Veteran is not only competent to report lay-observable events, but there is nothing in the record that impugns his credibility as to the issue, a VA examination is necessary to determine the nature and etiology of the Veteran's right and left knee disabilities. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board notes that the issue of entitlement to a TDIU is inextricably intertwined with the Veteran's service connection claims and must be deferred pending resolution of the claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Finally, while on remand, the AOJ should also attempt to obtain the Veteran's updated medical records. Accordingly, the case is REMANDED for the following action: (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. Contact the appropriate VA Medical Center(s) and obtain all outstanding treatment records if relevant to these claims. Also ask the Veteran to provide, or authorize VA to obtain, all relevant private medical records that have not yet been obtained. All efforts to obtain these records must be documented in the claim file and the Veteran properly notified if unable to obtain identified records. 38 C.F.R. § 3.159(c) and (e). 2. After receiving all additional treatment records, schedule the Veteran for a VA examination to determine the nature and etiology of his right and left knee disabilities. His claim file, including a copy of this remand, must be made available to the examiner in conjunction with the examination. All pertinent symptoms and findings must be reported in detail. Following review of the evidence of record, the clinical examination results, and the Veteran's statements, the examiner must address the following: (a) Is it at least as likely as not (50 percent or higher degree of probability) that any currently diagnosed right knee disability had its onset during service or is it otherwise related to service? (b) Is it at least as likely as not (50 percent or higher degree of probability) that any currently diagnosed left knee disability had its onset during service or is it otherwise related to service? The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. (c) Is it at least as likely as not that the Veteran's currently diagnosed right and/or left knee disability had its onset during the year immediately following his separation from active duty in December 1980? (d) If the right knee disability is found to be at least as likely as not related to service, then the examiner is asked to comment on whether it is at least as likely as not that the Veteran's left knee disability is proximately due to or aggravated by his right knee disability? The examiner should note that the term "aggravated by" refers to "any increase in severity" of a nonservice-connected disability that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the nonservice-connected disability. If the examiner opines that the Veteran's right knee disability has aggravated his left knee disability, then the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. (e) The examiner is further asked to comment on what limitations might be expected in the workplace (based on the Veteran's employment history and training) with respect to his right and left knee disabilities. All answers to the questions listed above must be supported by a clear rationale. The examiner is asked to explain in detail the underlying reasoning for his or her opinion, to include citing to relevant evidence, supporting factual data, prior medical opinions, and medical literature, as appropriate. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words, merely saying he or she cannot respond will not suffice. The absence of evidence of contemporaneous medical evidence in the service treatment records cannot, standing alone, serve as the basis for a negative opinion. 3. Ensure that the requested examination report is responsive to the applicable rating criteria. If it is not, obtain all necessary additional information. Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 C.F.R. §4.2. 4. After completing the above and any other development deemed necessary by the AOJ, readjudicate the claims remaining on appeal. If the issues remain denied, send the Veteran an SSOC, and give them time to respond to it before returning the file to the Board for further appellate consideration of these claims. 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. H. Hawley 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) (2017).