Citation Nr: 0721931 Decision Date: 07/20/07 Archive Date: 08/02/07 DOCKET NO. 04-36 191 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for osteoarthritis of both knees. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Kelley, Associate Counsel INTRODUCTION The veteran had active military service from February 1957 to February 1959. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision from the St. Petersburg Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2007, the veteran presented testimony at a video conference before the undersigned Veterans Law Judge; a copy of the hearing transcript is in the record. This appeal is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. REMAND In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) discussed the steps to be taken in determining whether a VA examination is necessary prior to final adjudication of a claim. In disability compensation claims, the Secretary must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The Court in McLendon observed that the third prong, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. In this case for service connection for osteoarthritis of both knees, the veteran contends that he injured his knees in service with the 82nd Airborne Division by parachute jumping. Regarding VA's duty to assist, VA had earlier requested the appellant's service medical records, but according to a VA letter of September 1986 to the appellant, his service records were destroyed in the fire at the National Personnel Records Center. Additionally, in January of 1987 in response to VA's request for records for the appellant at Ft. Bragg, North Carolina with the 82nd Airborne in the February 1957 to February 1959 timeframe, VA received a response from the National Personnel Records Center that stated, "We are unable to identify a 425 Battle Gp 1957", thus indicating that the Records Center searched the incorrect files. VA treatment records of May 2004 indicate that the veteran had pain in his knees and knee discomfort, right knee arthralgia and the examiner adopted the veteran's history relating the bilateral knee condition to his jumps as an airborne paratrooper. A June 2004 VA x-ray of the veteran's knees showed moderate narrowing of the patellofemoral joint spaces, with osteophytes arising from the superior and inferior poles of both patella posteriorly. Additionally, competent medical evidence of osteoarthritis of both knees exists in a private treatment opinion of May 2007 in which the examiner found post traumatic arthrosis of both knees from earlier injuries. The records contain no VA compensation examination. The record is otherwise silent for a medical opinion forming a nexus between the veteran's current diagnosis of bilateral osteoarthritis of the knees and any in-service occurrence regarding parachute jumping. The veteran stated in September 2004 that his frequent parachute jumps were the cause of his osteoarthritis of both knees. At the May 2007 hearing, the veteran testified that there was nothing wrong with his knees when he entered service in February of 1957. He stated that he was stationed at Ft. Bragg, North Carolina for most of his service, and that he jumped out of airplanes at least 20 times a month. He stated that he injured his right knee on a parachute jump, but in trying to protect that knee with his left knee, he also injured his left knee. He also stated that after service he worked in a car dealership, but that he had never had physical labor jobs, and that he was not diagnosed with osteoarthritis of the knees until 2004 when he sought treatment at the VA Medical Center in Ft. Myers, Florida. Accordingly, the Board finds there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. For these reasons, the Board finds the case must be remanded to obtain a VA examination with competent medical opinion on whether the veteran's osteoarthritis of both knees is related to active military service. Accordingly, the case is REMANDED for the following action: 1. The AOJ should make another request to the United States Army to find the veteran's service medical and service personnel records, since the first response was inaccurate in that it identified the incorrect unit. Since the veteran's individual records may be unavailable due to the fire, the AOJ should also request manpower records of the 82nd Airborne Division during the relevant timeframe. 2. The AOJ should ask the veteran to identify all health care providers that have treated him for his osteoarthritis of the knees since 2004 through the present. The AOJ should request all treatment records from the private examiner who provided the May 2007 opinion. If the records are unavailable, the provider should so indicate. 3. VA should ask the appellant to provide the names and addresses of any living buddies with whom he served who could provide "buddy statements" corroborating the veteran's service with the 82nd Airborne, the frequency of his parachute jumps, and any observations of problems with his knees. 4. After completion of the above, the AOJ should schedule the veteran for an orthopedic examination, by an appropriate specialist, for a medical opinion to determine whether his osteoarthritis of both knees is related to his military service. The examiner should be provided with any new information obtained as the result of paragraphs 1 and 2 above, the veteran's claims folder for review, and the examination report should indicate the review was undertaken. All indicated tests and studies, to include x-rays, should be conducted. The full and accurate relevant history of the veteran's osteoarthritis of both knees and relevant VA examination and treatment records from May of 2004, and relevant service medical records should be reviewed by the examiner. From the results of the VA examination, the examiner should offer an opinion as to whether it is at least as likely as not that the veteran's osteoarthritis of both knees is related to service. A complete rationale should be provided for any opinion given. If the requested medical opinion cannot be given, the examiner(s) should state the reason why. 5. Following completion of the above development, the AOJ should readjudicate the appellant's claim for service connection of osteoarthritis of both knees. If any determination remains unfavorable to the appellant, he and his representative should be provided with a supplemental statement of the case and be afforded an opportunity to respond before the case is returned to the Board for further review. The purposes of this remand are to comply with due process of law and to further develop the veteran's claim. No action by the veteran is required until he receives further notice; however, the veteran is advised that failure to cooperate by reporting for examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2006). The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the above. 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 Supp. 2006). _________________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2006).