Citation Nr: 1807700 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 13-11 172 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Veteran represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from August 1981 to August 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In a May 2015 decision, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development and adjudication. The case has since been returned to the Board for appellate review. The Board notes that the Veteran's service connection claim for a bilateral knee disorder was previously denied by the Board in a December 2016 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2017 Order, the Court vacated the Board's decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). REMAND During the appeal period, the Veteran has reported receiving relevant treatment from the Audie L. Murphy Memorial Veterans Hospital in San Antonio, Texas in 1984 and 1985. See July 2008 Claim; January 2013 VA examination. The record shows that in September 2010, the RO requested records from the South Texas Veterans Healthcare System (which includes Audie L. Murphy Memorial VA Hospital) for the period from August 1984, when the Veteran separated from service, to December 1984. The South Texas Veterans Healthcare System sent a negative response in December 2010. However, no efforts have been made to obtain treatment records from 1985. In the Joint Motion, the Court determined that VA failed to satisfy the duty to assist in not requesting these records, and stated that the records must be requested on remand. See 38 C.F.R. § 3.159(c)(3). Consequently, a remand is required in order for the AOJ to request the reported records of VA treatment. The Board also finds that a remand is needed for an adequate VA medical opinion in compliance with the May 2015 Board remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). The remand directed the AOJ to obtain an additional VA medical opinion that addressed any currently diagnosed knee disorders. In April 2016, a VA examiner provided a negative opinion related to the Veteran's diagnosis of bilateral knee joint osteoarthritis. However, the record shows that the Veteran also received a diagnosis of internal derangement of the bilateral knees during the appeal period. See January 2013 VA examination; see also McClain v. Nicholson, 21 Vet. App. 319 (2007). As the opinion did not address this diagnosis, an additional VA medical opinion should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his bilateral knee disorder. The AOJ should also secure any outstanding, relevant VA medical records, to include records from the South Texas Veterans Healthcare System dated since January 2013. A specific request must be made for all available medical records from 1985 for treatment from the Audie L. Murphy Memorial VA Hospital, to include archived records. 2. After completing the preceding development in paragraph 1, obtain a VA medical opinion from a qualified examiner on the etiology of the Veteran's bilateral knee disorder. The electronic claims files must be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file. A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed. If an examination is deemed necessary, one must be provided. The examiner should note that the Veteran is competent to attest to observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. In providing an opinion, the examiner should consider the Veteran's statements of continuity of symptoms since service related to his knees. The examiner should identify any knee disorder that has been present during the appeal period or within close proximity thereto (even if it has since resolved). In this regard, the examiner should address the following: (1) the impression from the October 2010 MRI report for the left knee from Dr. C. that noted myxoid degeneration of the menisci without meniscal tear; (2) the January 2013 VA examination report that documented a diagnosis of internal derangement of both knees; and (3) the April 2016 VA examination report's diagnosis of bilateral knee joint osteoarthritis. For each identified knee disorder, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested during active service; manifested within one year of the Veteran's separation from active service; or is otherwise related to active service, to include any injuries therein. 3. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above actions, and any other development deemed necessary, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran. 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. §§ 5109B, 7112 (2012). _________________________________________________ GAYLE E. STROMMEN 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).