Citation Nr: 1754152	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  12-17 758A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to service connection for a right knee disability.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Nelson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1969 to January 1972. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.

The Veteran testified at a hearing before the Board in April 2015.  A transcript of that hearing has been associated with the claims file.

The Board remanded the Veteran's appeal in August 2015 in order to afford him a VA examination.  After such was achieved, the Veteran's appeal was returned to the Board for further appellate review.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

Although the Board sincerely regrets the additional delay, the Veteran's claim must be remanded before the Board is able to make a determination on the merits.  Specifically, the Veteran must be afforded a new VA medical opinion in order to determine whether the Veteran's claimed right knee disability is related to service. 

Pursuant to the Board's August 2015 remand directives, the Veteran was afforded a VA examination in November 2015 to determine the etiology of his right knee disability.  The remand directed the examiner to address all current diagnoses of the right knee, list all diagnoses of the right knee during the appeal period, to include if the Veteran has any patella femoral pain syndrome, and address whether it is at least as likely as not (50 percent probability or more) that the Veteran's diagnosed right knee disabilities, to include any diagnosis of osteoarthritis, chondromalacia, patella femoral pain syndrome, or meniscus tear, began in service, was caused by service, or is otherwise related to service?  The examiner was instructed to specifically address the Veteran's lay statements regarding his combat injury.  Additionally, the examiner was directed to address the Veteran's February 1972 VA examination wherein the Veteran stated that whenever his knee is hit or if he stands for long periods of time it results in hurting or aching and that the right knee aches after walking for a period of time. 

If the above opinion was negative, then examiner was asked to also provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's diagnosed right knee disabilities, to include any diagnosis of osteoarthritis, chondromalacia, patella femoral pain syndrome, or meniscus tear, are caused or aggravated by his service-connected shrapnel wound scar of the right knee?

The examiner was also asked to specifically comment on the May 2009 private treatment record stating that although the doctor could not be certain, there is a definite possibility that the shrapnel injury did contribute to his knee problems.

In January 2016 the VA examiner issued a negative opinion regarding whether the Veteran's claimed right knee condition was incurred in or caused by the claimed in-service injury, event or illness.  While the examiner noted the Veteran's right knee shrapnel wound to the skin with no deep tissue injury, he did not address whether this injury caused or aggravated his current right knee condition.  Furthermore, the examiner did not address the Veteran's 1972 VA examination in his opinion. 

As a result, another remand is necessary to obtain an adequate medical opinion in order to properly adjudicate the Veteran's claim and to ensure compliance with the Board's prior remands.  See Stegall v. West, 11 Vet. App. 268 (1998).

Accordingly, the case is REMANDED for the following action:

1.  Forward the Veteran's claims file, including this remand, to the VA examiner who conducted the November 2015 knee and lower leg conditions examination, or an appropriate substitute if unavailable, for an addendum opinion.  If necessary, schedule the Veteran for additional examination.  The examiner should address the following questions:

a.)  Is it at least as likely as not (50 percent probability or more) that the Veteran's diagnosed right knee disabilities, to include any diagnosis of osteoarthritis, chondromalacia, patella femoral pain syndrome, or meniscus tear, began in service, was caused by service, or is otherwise related to service?  The examiner should specifically address the Veteran's lay statements regarding his combat injury.  Additionally, the examiner should address the Veteran's February 1972 VA examination wherein the Veteran stated that whenever his knee is hit or if he stands for long periods of time it results in hurting or aching and that the right knee aches after walking for a period of time.

b.)  Is at least as likely as not (50 percent probability or more) that the Veteran's diagnosed right knee disabilities, to include any diagnosis of osteoarthritis, chondromalacia, patella femoral pain syndrome, or meniscus tear, are caused or aggravated by his service-connected shrapnel wound scar of the right knee?

Aggravation is defined as a permanent worsening beyond the natural progression of the disability.

The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.

A complete rationale must be provided for any opinion offered.

2.  After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken above, the RO must re-adjudicate the Veteran's claims that are currently on appeal.  If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After he has had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate 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.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
ROBERT C. SCHARNBERGER
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) (2016).
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