Citation Nr: 1802957 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 12-34 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his father ATTORNEY FOR THE BOARD P. Lopez, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1994 to April 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a hearing at the RO in March 2013; a transcript is of record in VA's Legacy Content Manager (LCM). The Board last considered this matter in August 2017, when it remanded for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for a right knee disability. See January 2012 claim. At his March 2013 Board hearing the Veteran reported current right knee symptoms, such as pain, locking, and instability of the knee. A June 2015 VA examination shows a diagnosis of right chondromalacia patella. The Veteran's enlistment examination shows a finding of apparent internal derangement of the right knee. He reported a history of right knee fracture. In September 2017, a VA examiner opined that the Veteran's claimed right knee disability clearly and unmistakably preexisted his military service, as the Veteran clearly had a history of trauma and symptoms relating to his right knee at the time of his enlistment medical examination. Nevertheless, the examiner opined that the preexisting right knee disability was not aggravated in service beyond its natural progression. In support of this conclusion, the examiner noted that he found no evidence of right knee treatment in the Veteran's service treatment records, and no indication of new or expanded right knee issues in his separation medical examination. The aggravation component of the September 2017 VA opinion is inadequate. The Board's August 2017 remand specifically asked the examiner the following questions: Did a right knee disability clearly and unmistakably preexist service? If so, is it also clear and unmistakable that such preexisting disability was NOT aggravated in service beyond its natural progression? The examiner's answer to the second question was simply that the Veteran's preexisting right disability was not aggravated in service beyond its natural progression. The examiner did not answer the relevant question of whether it is clear and unmistakable that the preexisting disability was NOT aggravated in service beyond its natural progression. Moreover, the examiner did not consider nor address the Veteran's testimony that he began to feel knee symptoms right away in service, that he sought treatment but was told that his knee was fine, and that, from then on, he self-treated himself with over-the-counter pain medication. See 05/19/2013 LCM, Hearing Transcript, at 9-11. Further, the VA opinion was solely based on the absence of documented treatment or symptoms. For these reasons, an adequate opinion is not of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). Accordingly, the case is REMANDED for the following action: 1. Forward the claims file to the September 2017 VA examiner, or another examiner if that individual is unavailable, to provide an addendum opinion. Review of the claims file should be noted in the examiner's report. The examiner should respond to the following: Is it clear and unmistakable that the Veteran's preexisting right knee disability was NOT aggravated in service beyond its natural progression? The examiner should consider and address the Veteran's reported history of knee symptoms and self-treatment in service, as recounted in the March 2013 Board hearing, a transcript of which is accessible through VA's Legacy Content Manager (formerly known Virtual VA). A complete rationale must be provided for any opinion offered. All lay and medical evidence should be considered. If the examiner cannot provide an opinion without resort to speculation, he/she should explain why that is the case and what, if any, additional evidence is necessary for an opinion. 2. If any benefit sought on appeal remains denied, issue a Supplemental Statement of the Case before returning the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). All claims remanded for additional development or other appropriate action must be handled expeditiously. See 38 U.S.C.A. §§ 5109B, 7112 (West 2017). ____________________________________________ Eric S. Leboff 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).