Citation Nr: 0810643 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 04-16 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for left knee disorder. 2. Entitlement to service connection for right knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole R. Kammel, Counsel INTRODUCTION The veteran served on active duty from July 1963 to May 1967 and from November 1967 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, wherein the RO, in part, denied service connection for degenerative joint disease of the right and left knees. The veteran timely appealed the RO's April 2003 rating action to the Board. Jurisdiction of the claims file currently resides with the Phoenix, Arizona RO. A videoconference hearing before the undersigned was held in January 2008. A copy of the hearing transcript has been associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran contends that he has a left knee disorder that is the result of an injury during service in 1966. (See, Transcript (T.) at page (pg.) 4). He specifically maintains that he did not injure his right knee during service, but that his current right knee disorder is secondary to his left knee. (See, T. at pg. 7). Service medical records show that in mid-February 1966, the veteran twisted his left knee skiing. At that time, a physical evaluation of the left knee was positive for pain on the medial side and on complete extension and lateral rotation to the front. X-rays of the left knee were negative for any evidence of fractures. An impression of mild medial collateral ligament strain was recorded. The veteran was instructed to wear an Ace wrap, and apply ice within 24 hours and heat thereafter. The remainder of the service medical records, to include April 1967 and December 1971 service separation examination reports, are devoid of any subjective complaints or objective clinical findings referable to any left or right knee pathology. On Reports of Medical History, dated in April 1967 and December 1971, the veteran denied having a "trick" or locked knee. Post-service VA and private treatment reports reflect the veteran has been diagnosed as having degenerative joint disease of the right and left knees. (See, VA orthopedic examination report, dated in November 2002.) After a physical evaluation of the appellant's knees in November 2002, the VA examiner concluded that the veteran had, "right knee strain, based on basic biomechanical principles it is secondary to favoring the left knee." The VA examiner did not provide an opinion as to the etiology of any left knee disorder. (see, November 2002 VA orthopedic examination report). VA is obliged 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.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for triggering VA's duty to provide an examination is low. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. However, it is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In this case, because the veteran has reported a continuity of symptomatology of left knee pathology since his initial period of military service, and there is medical evidence of an in-service left knee injury, and the veteran has a current diagnosis of degenerative joint disease of the left knee, a VA examination is needed to obtain a competent medical opinion as to whether any current left knee disorder is related to an event or incident during the appellant's military service. As the veteran testified that his right knee disorder is secondary to his left knee, and a VA examiner concluded that "right knee strain, based on basic biomechanical principles it is secondary to favoring the left knee," appellate review of the claim for service connection for right knee disability is deferred pending the development set forth in the remand below. Other Considerations During a January 2008 hearing before the undersigned, the veteran testified that he had most recently sought treatment for his left knee at the Northwest VA Health Care Clinic in Sun City, Arizona. (See, T. at pg. 6). While treatment records from VA Medical Centers (VAMCs) in Phoenix, Arizona and Seattle, Washington (i.e., Vista Puget Sound), dating from June 2002 to August 2004, are contained in the claims file, records from Northwest VA Health Care Clinic in Sun City, Arizona are absent. VA has constructive notice of documents generated by VA whether in the claims file or not. Bell v. Derwinski, 2 Vet. App. 611 (1992). In this regard, the Board notes that, because of the need to ensure that all potentially relevant VA records are made part of the claims file, a remand is necessary. Id. The veteran also testified that in 1973, he had sought treatment for his left knee at Evergreen Hospital, Kirkland, Washington. He stated that he could not remember if he had tried to obtain medical records from the aforementioned private hospital. (See, T. at pages 5 and 13). Records of this treatment are not part of the claims file. VA has a duty to obtain records of relevant treatment reported by private medical professionals. Massey v. Brown, 7 Vet App 204 (1994). Finally, in an April 2006 letter, the Arizona Department of Economic Security, a program administered by the Social Security Administration (SSA), requested that VA release all medical information pertaining to the appellant. Thus, it appears that the veteran might be in receipt of SSA disability benefits. A copy of any SSA decision and medical records, private or VA, that served as a basis for such an SSA decision have not been obtained. VA has a duty to obtain these records. 38 U.S.C. § 5103A; Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain all records of treatment of the veteran from Northwest VA Health Care Clinic,10147 Grand Avenue, Suite C1, Sun City, Arizona 85351. If these records can not be obtained, documentation stating this fact must be associated with the claims file. 2. Obtain all records pertaining to the veteran from Evergreen Hospital, Kirkland, Washington, dated in 1973. If these records can not be obtained, documentation stating this fact must be associated with the claims file. 3. Obtain from the Social Security Administration any decisions on disability claims by the veteran and the medical records relied upon in those decisions. 4 Schedule the veteran for a VA orthopedic examination to determine the nature and likely etiology of any current left knee disorder found on examination. The examiner must review the claims file and note such review in the examination report or in an addendum. The examiner must answer the following general question: is it at least as likely as not (50 percent probability or more) that any left knee disorder diagnosed began in service, is the result of an incident or disease in service, or had its onset within the first post-service year? In formulating the above-requested opinion, the examiner is referred to service medical records, dated in mid- February 1966, pertaining to treatment received for left knee mild medial collateral l ligament strain. (See, February 1966 service medical reports). 5. Then, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the veteran and his representative should be issued an appropriate supplemental statement of the case and afforded an opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The purposes of this remand are to ensure notice is complete, and to assist the veteran with the development of his claims. 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). No action is required of the appellant until further notice. The Board, however, takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examinations, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2007). (CONTINUED ON NEXT PAGE) These claims 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. 2007). _________________________________________________ DENNIS F. CHIAPPETTA 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) (2007).