Citation Nr: 1806390 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-16 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right knee disorder, to include as secondary to a service-connected left knee disability. 2. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Grzeczkowicz, Associate Counsel INTRODUCTION The Veteran served on active duty from November 2006 to March 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem North Carolina. A travel Board hearing before the undersigned Veterans Law Judge was held in July 2017. A transcript of the hearing has been associated with the claims file. At the July 2017 travel Board hearing, the Veteran clarified that he was seeking service connection for his right knee to include as secondary to his service-connected left knee strain. Thus, the Board has re-characterized the issue to reflect the Veteran's contentions as noted on the title page. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND VA is obligated to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Board finds that an examination is necessary to ascertain the nature and likely etiology of the claimed right knee disorder, to include as secondary to the service-connected left knee disability. The evidence of record establishes that the Veteran is currently service connected for left knee strain. The Veteran asserts that his right knee disorder is related to service and, alternatively, his right knee disorder is related to his service-connected left knee disability. The Veteran contends that he began experiencing right knee pain in service. The post-service evidence includes a February 2010 VA examination, where the Veteran reported right knee pain during service. The February 2010 VA examination does not contain a nexus opinion. As the Veteran has not been afforded a VA examination for the purposes of obtaining a nexus opinion, and based on his competent lay contentions, an examination should be conducted. During his July 2017 Board hearing, the Veteran specifically attributed his right knee disorder to his time in service when he jumped as part of his MOS as military police, airborne. Specifically, the Veteran stated that while he was stationed at Fort Benning, Georgia, he jumped at 1800 feet out of a C-130 and he felt a sharp pain in his knee and sought medical treatment. The Veteran is competent to report observable symptoms and a continuity of symptomatology. Duenas v. Principi, 18 Vet. App. 512 (2004). As the Veteran has not been afforded a VA examination for the purposes of obtaining a nexus opinion, and based on his competent lay contentions, one should be conducted. The Board finds that an examination is necessary to ascertain whether the current right knee disability is related to active service. Regarding the claim for service connection for a low back disorder, the Board finds that an examination is necessary to ascertain the nature and likely etiology of the claimed low back disorder. The evidence of record establishes that the Veteran has a current diagnosis of a low back disorder. The Veteran asserts that his low back disorder is related to service. The Veteran contends that he began experiencing low back pain in service. The evidence includes a February 2010 VA examination, where the Veteran reported low back pain. During his July 2017 Board hearing, the Veteran specifically attributed his low back pain to his time in service when he jumped as part of his MOS as military police, airborne. Specifically, the Veteran stated that while he was stationed at Fort Benning, Georgia, he jumped at 1800 feet out of a C-130 and he felt pain in his back and sought medical treatment. The Veteran is competent to report observable symptoms and a continuity of symptomatology. Duenas v. Principi, 18 Vet. App. 512 (2004). The February 2010 VA examination does not contain a nexus opinion. As the Veteran has not been afforded a VA examination for the purposes of obtaining a nexus opinion, and based on his competent lay contentions, an examination should be conducted. The Board finds that an examination is necessary to ascertain whether the current low back disability is related to active service. Accordingly, the Board finds that an examination is necessary to determine the existence and etiology of any current right knee disability and any currently low back disability. Accordingly, the case is REMANDED for the following action: 1. Copies of updated treatment records, VA and non-VA, should be obtained and added to the claims file. 2. Following completion of the above, schedule the Veteran for a VA examination by an appropriate examiner for an opinion concerning the nature and etiology of any right knee disorder. A clinical examination with all indicated tests and studies should be conducted. The claims file must be reviewed by the examiner and such should be noted in the report. A detailed history should be obtained from the Veteran and considered by the examiner. The examiner should provide the following opinion: (a) Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed right knee disorder is etiologically related to active service? (b) Is it as least as likely as not (50 percent or greater probability) that the Veteran's right knee disorder is caused or aggravated by his service-connected left knee strain? The supporting rationale for all opinions expressed must be provided. 3. Schedule the Veteran for a VA examination by an appropriate examiner for an opinion concerning the nature and etiology of any low back disorder. A clinical examination with all indicated tests and studies should be conducted. The claims file must be reviewed by the examiner and such should be noted in the report. A detailed history should be obtained from the Veteran and considered by the examiner. The examiner should provide the following opinion: (a) Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed low back disorder is etiologically related to active service? The supporting rationale for all opinions expressed must be provided. (b) Is it as least as likely as not (50 percent or greater probability) that the Veteran's low back disorder is caused or aggravated by his service-connected left knee strain? The supporting rationale for all opinions expressed must be provided. 4. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, issue a supplemental statement of the case and provide the Veteran and his representative with an opportunity to respond. Then return the case to the Board, if otherwise in order. 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). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).