Citation Nr: 1803554 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 13-31 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1991 to October 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2016, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Additional development is required for an adequate determination. The Veteran contends that he has a present right knee disability as a result of an injury in November 1992, sustained at the same time he incurred the low back injury for which service connection has been established. Alternatively, he contends that his right knee disorder developed or was aggravated as a result of his service-connected lumbosacral strain and left and right lower extremity radiculopathy disabilities. Service treatment report included a November 1992 report noting the Veteran's complaints of knee stiffness, which was coincidental to when he injured his back. There were contusion/abrasions to the anterior tibial plateaus with tenderness. However, upon separation examination in June 1993, and as noted by the VA examiner, the Veteran denied any history of knee problems and an evaluation of his lower extremities was clinically normal. Subsequent VA treatment records dated in December 2008 noted probable osteoarthritis and in January 2011 included a diagnosis of bilateral patellofemoral joint syndrome. The Board notes that a November 2010 VA examination noted a diagnosis of right knee degenerative arthritis and, in essence, found an etiology opinion could not be provided without resort to mere speculation. The examiner, however, stated erroneously there was no evidence of the Veteran having been seen in service for right knee pain. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (an examiner's statement that an opinion could not be offered without resort to mere speculation may be accepted as adequate only if it is determined that it is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed). A May 2016 VA treatment note stated that the Veteran should have further evaluation for his right knee "as it is at least as likely as not that his arthritic condition could have come from that old injury." This statement is too inconclusive for an adequate determination. VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on a claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). In the view of above, the Board finds another VA medical examination is required. Prior to any examination, up-to-date VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all pertinent VA medical records not yet associated with the appellate record. 2. Obtain a clarifying VA medical opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a left knee disability that: a. had its onset in service, or b. is etiologically related to his active service, or c. was caused by his service-connected lumbosacral strain and left and right lower extremity radiculopathy disabilities, or d. was aggravated (worsened) by his service-connected lumbosacral strain and left and right lower extremity radiculopathy disabilities. The examiner must acknowledge review of the pertinent evidence of record. All necessary examinations, tests, and studies should be conducted. Rationale for the requested opinion shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, provide an explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question. 3. Thereafter, the AOJ should address the issue on appeal. If the benefit sought is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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. §§ 5109B, 7112 (2012). _________________________________________________ MICHAEL A. HERMAN 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).