Citation Nr: 1803912 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-30 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bonnie Yoon, Counsel INTRODUCTION The Veteran served on active duty from December 1961 to April 1966, with subsequent service with the Naval Reserve. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in November 2017. A transcript of that hearing is of record. The record was held open for 60 days to allow for additional evidence to be submitted; no additional evidence was received. The claim for service connection for a right knee disability has been recharacterized to reflect consideration of the merits of the claim as opposed to consideration of reopening of a previously denied claim. Service connection for a right knee disability was denied in an August 2006 rating decision. The Veteran filed a Notice of Disagreement in August 2006, and a Statement of the Case was issued in March 2008. However, the Veteran did not perfect his appeal and the rating decision is final. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. However, new and relevant service department records, including service treatment records from May 1975 which note treatment for a sprained right knee which occurred during monthly drill, were submitted by the Veteran in May 2012, and requested and received by the RO in January 2014. These records were available at the time of the prior decision and could have been obtained. By regulation, where VA receives relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement of new and material evidence. 38 C.F.R. § 3.156(c). As the Veteran has claimed that his right knee disability was due to injury in service and that his left knee disability is secondary to his right knee; the Board will therefore proceed with the claims for entitlement to service connection for a right knee disability and for a left knee disability on the merits, as opposed to a petition to reopen the claims based on new and material evidence. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). 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 and a left knee disability. He claims that he suffered a right knee injury while on active duty for training at Imperial Beach, California with the Naval Reserve. He also indicated that following this injury, his left knee began to give him trouble about eight months later and it was due to his right knee problems. During his November 2017 Board hearing, the Veteran also claimed that his right and left knee disabilities were caused or aggravated by his service-connected traumatic brain injury (TBI). VA treatment records, including records from June 2013, note diagnoses of degenerative joint disease in both knees. The Board notes that the Veteran was afforded a VA examination in May 2014, where the examiner found that the Veteran's condition was less likely than not related to service. The rationale was that there was no evidence of any complaints of a right knee disorder found in the service treatment records and x-ray evidence in 2008 and 2011 indicated mild symmetric degenerative changes in both knees, which were most compatible with typical age-related change. In rendering this opinion, the examiner failed to discuss the Veteran's statements regarding suffering a right knee injury in service. The examiner also did not discuss relevant May 1975 service treatment records where the Veteran was treated for a right knee sprain which occurred during monthly drill, and subsequent September and October 1975 service treatment records which reflect follow up treatment for the injury. These records were part of the file at the time of the May 2014 VA examination. For purposes of VA compensation claims (including service connection), active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. . Given the above, the Board finds the May 2014 opinion inadequate as the examiner did not 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). As such, the Board finds that a remand for a new VA examination and medical opinion based on full review of the record and supported by rationale is needed to fairly resolve the Veteran's claims. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The VA examiner should also provide an opinion as to whether the Veteran's bilateral knee disorders are at least as likely as not caused by or aggravated by his service-connected TBI. Also, while on remand, the AOJ should also attempt to obtain, if available, the Veteran's updated VA and private treatment records. Accordingly, the case is REMANDED for the following actions: (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 Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on the response received, attempt to procure copies of all records which have not previously been obtained from identified treatment sources. 2. Obtain and associate with the claims file VA treatment records from April 2015 to the present. 3. After receiving all additional records, provide the Veteran an appropriate VA examination to determine the nature, extent, and etiology of his right knee disability and his left knee disability. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. Following an examination of the Veteran and a review of the claims file, the examiner is asked to provide opinions on the following: A) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's current right knee disability is related to the Veteran's service, to include a May 1975 right knee sprain that occurred during monthly drill with the Naval Reserve? B) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's current left knee disability was 1) caused or 2) aggravated (that is, any increase in severity beyond the natural progression of the condition) by the Veteran's right knee disability? C) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's current right and left knee disabilities were 1) caused or 2) aggravated (that is, any increase in severity beyond the natural progression of the condition) by the Veteran's service-connected TBI? The examiner must provide a complete rationale for any opinion expressed. The opinions should address the particulars of this Veteran's medical history, his lay statements, and the relevant medical principles as applicable to this claim. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. 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 paragraphs, readjudicate the Veteran's claims for service connection for a right knee disability and service connection for a left knee disability. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and afford them reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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).