Citation Nr: 1800940 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 11-32 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Silverblatt, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1979 to July 1986. He then served in the Army National Guard from November 1986 to March 2006, with periods of active duty (Army National Guard Mobilized Service) from February 1991 to May 1991, and from February 2003 to May 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The matter was previously remanded by the Board in May 2017 for additional development. The matter has since returned to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part. REMAND The Veteran is seeking service connection for a right knee disability. Specifically, the Veteran contends that his right knee disability is due to continuous physical training throughout his time in service. In July 2017, the Veteran was afforded a VA examination pursuant to the May 2017 Board remand. The VA examiner diagnosed the Veteran with right knee meniscal tear and degenerative arthritis. He noted that the Veteran suffered from an acute right knee complaint for four weeks in June 2004 and had no further right knee complaints until five years later, in June 2009. The examiner opined that the Veteran's right knee disability was less likely than not due to service, determining that there was insufficient evidence cited in the Veteran's service treatment records, civilian treatment records, and on the current VA examination. However, the examiner failed to address the Veteran's statements that he underwent continuous physical training during service. While the Veteran is not competent to etiologically link his current right knee disability to his physical training, he is competent to report the consistent physical wear on his body throughout his years in service, as that is a matter that does not require specified knowledge and can be described by a lay person. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Furthermore, review of the evidentiary record reveals VA treatment records from May and November 2008 noting right knee pain, limited range of motion, and slipping and instability. As the examiner referred to a five year gap without knee complaints, from 2004 to 2009, it appears the Veteran's right knee complaints from 2008 were not taken into consideration when forming the requested opinion. As such, remand is necessary to obtain an addendum medical opinion that addresses the Veteran's competent and credible statements and his treatment records from 2008 noting right knee disability. While on remand, the Veteran should be afforded another opportunity to identify any outstanding VA or private treatment records relevant to the Veteran's right knee disability. Thereafter, any identified records should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran an opportunity to submit any outstanding private treatment records relating to his right knee disability. Provide the Veteran with the appropriate authorization for release form(s). For any outstanding private treatment records identified and authorized by the Veteran, make at least two (2) attempts to obtain such records. All attempts made must be documented in the electronic file, to include the unavailability of any identified records. For any identified records that are not obtained, notify the Veteran and his representative of such and provide him with an opportunity to submit those records directly. 2. After the above development has been completed, and after any records obtained have been associated with the evidentiary record, the Veteran's entire electronic claims file should be furnished to the VA examiner who conducted the July 2017 VA examination, or to another similarly qualified examiner, should that examiner prove unavailable. The examination report must include a notation that this record review took place. If, and only if, determined necessary by the VA examiner, the Veteran should be scheduled for another VA examination. The examiner should provide an addendum opinion which specifically addresses the following question: Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's right knee meniscal tear and degenerative arthritis are etiologically related to active duty service, to specifically include his competent and credible reports of continuous physical training during his many years in service. The examiner is asked to address VA treatment records from May and November 2008 noting right knee pain, limited range of motion, and slipping and instability when forming the requested opinion. A complete rationale for any opinion offered should be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the claim should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. The Veteran and his representative have 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 (2014). _________________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).