Citation Nr: 1808526 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 12-26 931 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and a Friend ATTORNEY FOR THE BOARD Angeline DeChiara, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1968 to September 1969, including service in the Republic of Vietnam. His decorations include the Purple Heart Medal and the Combat Infantryman Badge. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In May 2015, the Veteran appeared and testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This appeal has been before the Board on two previous occasions. In a January 2016 decision, the Board remanded the Veteran's claims for additional development. In a November 2016 decision, the Board denied entitlement to service connection for the Veteran's right and left knee disabilities. The Veteran subsequently appealed the November 2016 decision to the United States Court of Appeals for Veterans Claims, which issued an order in September 2017 granting a Joint Motion for Remand (JMR) filed by the Veteran's representative and the VA Office of the General Counsel. The Court's order vacated the Board's November 2016 decision and remanded the Veteran's claim back to the Board. Specifically, the parties agreed that the November 2016 decision did not address the competency and credibility of the Veteran's lay statements regarding continuity of his symptoms of his knee disabilities. These statements are relevant to the issue of whether the Veteran's current right and left knee disabilities could be service connected based on the continuity of symptomatology theory under 38 C.F.R. § 3.303(b) (2017). For the reasons set forth below, this appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran claims that his right and left knee disabilities were caused by injuries he sustained while serving in the Republic of Vietnam. The Veteran reported that while in combat, he stepped on a land mine, was thrown about 40 feet, and landed on both knees in a rock pile. The Veteran also reported another incident where he hit his right knee on a post while running to seek cover from enemy fire. During the May 2015 Board hearing, the Veteran reported that he has continued to have problems with his knees since service. The September 2017 JMR directed the Board to address the competency and credibility of the Veteran's lay testimony regarding continuity of symptomatology, and if the Veteran's testimony is found to be competent and credible, the Board is instructed to consider whether further development is warranted in this case, to include a new examination or medical opinion. Additionally, in a statement filed by the Veteran's partner in April 2016, allegations were made that damage from the shrapnel in the Veteran's knees had caused muscle weakness. The Board notes that the Veteran is already service connected for residuals from multiple fragment wounds to both legs. The Board finds that this statement, along with medical evidence from January 2016 indicating that "[m]ultiple small metallic fragments are seen in the scattered soft tissue bilaterally" of the Veteran's knees, reasonably raises the theory of secondary service connection. Thus, a remand for an addendum opinion is necessary to fully consider all reasonably raised theories of entitlement, to include secondary service connection. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board will refrain from making a determination as to the competency and credibility of the Veteran's lay statements until a full development of the record is complete. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file any outstanding VA treatment records related to the claims on appeal. 2. Forward the Veteran's electronic claims file to the VA examiner who conducted the April 2016 examination, or, if unavailable, to another suitably qualified clinician, for a supplemental opinion as to the nature and etiology of the Veteran's right and left knee disabilities. It is left to the examiner's discretion whether to reexamine the Veteran. Following the review of the claims file, the examiner should provide an opinion on the following: Whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed right and left knee disabilities have been caused OR aggravated by a service-connected disability (namely, his service-connected residuals from multiple fragment wounds of both legs). [In this regard, it is noted that the April 2016 examiner previously identified a likely cause for the claimed disabilities , however, a specific discussion of any role played by the service connected fragment wounds of the legs in the development or course of the knee arthritis is necessary for adjudication purposes.] A complete rationale for all opinions should be provided. If the examiner cannot provide the above requested opinions without resorting to speculation, it should be so stated and a rationale provided for that medical conclusion. 3. Thereafter, readjudicate the issues on appeal based on all the evidence of record, and if any benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case. The Veteran should be provided a reasonable period to respond before the case is returned to the Board for review. 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 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 E. KILCOYNE 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).