Citation Nr: 1802318 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-11 327A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for a right shin or knee disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Ferguson, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1958 to June 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran appeared at the RO and testified before the undersigned Veterans Law Judge (VLJ) in October 2017. A transcript of the hearing 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 The Board regrets any additional delay to the Veteran in this matter, but finds that further development of the record is required to comply with VA's duty to assist the Veteran in his appeal. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 C.F.R. § 3.159(c)(4). The record indicates that there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; that an event, injury, or disease occurred in service; that the Veteran's symptoms may be associated with his service; and the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran testified at his October 2017 Board hearing that he served in the U.S. Coast Guard, and while off ship on an ice flow in Antarctica he went to mount the ladder of the ship and slipped. He testified that he struck the top of his shin where it meets the knee and was subsequently treated for exposure to cold and a laceration on his shin. The Veteran's service treatment records reflect treatment for exposure to cold and a wound, contusion, right shin in January 1960. The Veteran submitted a June 2016 letter from his private physician in which the physician indicated the Veteran had been his patient for 30 years for a variety of medical issues. He stated that the Veteran had a long-standing history of right knee pain and noted that he initially injured his knee in the 1960 incident. The physician stated that this required treatment including corticosteroid injections in 1993 and 2016. However, the physician did not indicate any basis for the implication that the Veteran's knee pain was a result of the in-service incident. Accordingly, the Board finds this evidence insufficient upon which to decide the instant matter. The Veteran was afforded a VA contract examination in December 2015 regarding his knee and lower leg. The examiner opined that the Veteran's condition was less likely than not related to his active duty service. His rationale stated that the medical evidence of record did not specifically document any trauma to the Veteran's right shin area during service. As noted above, an incident is noted in the Veteran's service treatment records. Accordingly, the December 2015 VA contract examination is inadequate as the examiner failed to consider all of the relevant evidence of record. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, the Board finds that a remand is necessary for a new examination and medical opinion as to the etiology of the Veteran's right knee/shin condition. The AOJ should also obtain any outstanding VA treatment records and request that the Veteran provide the details concerning any outstanding private treatment records related to the issue being decided herein. The AOJ should have the Veteran submit the necessary authorizations required to obtain any such records. The AOJ should further afford the Veteran an opportunity to obtain supplemental information from his private physician who wrote the June 2016 letter regarding the etiology of any currently diagnosed right knee or shin condition. 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. Obtain and associate with the claims file any outstanding post-service VA treatment records. 2. After obtaining any necessary authorizations from the Veteran, obtain and associate with the claims file any relevant, outstanding private treatment records. The AOJ should also afford the Veteran an opportunity to obtain supplemental information from his private physician who wrote the June 2016 letter regarding the etiology of any currently diagnosed right knee or shin condition. 3. After associating all outstanding private and VA treatment records with the claims file, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any diagnosed right knee or shin condition. The examiner is asked to offer an opinion as to whether it is at least as likely as not (i.e., 50% or greater) that any diagnosed right knee or shin condition is related to the Veteran's military service. The claims file should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. The examiner should specifically address the Veteran's documented January 1960 injury described above. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The complete bases for all medical opinions must be provided. 4. The AOJ should then readjudicate the issue on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and the representative should be furnished a SSOC and provided an appropriate opportunity to respond before the claims folders are returned to the Board for further appellate action. The Veteran 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). _________________________________________________ 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).