Citation Nr: 1010763 Decision Date: 03/22/10 Archive Date: 03/31/10 DOCKET NO. 03-20 278A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to a rating in excess of 10 percent for chondromalacia of the right knee. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD J. B. Freeman, Associate Counsel INTRODUCTION The veteran had active service from August 1974 to October 1977. This matter is before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). In a May 2008 Order, the Court endorsed a May 2008 joint motion for remand, vacated the portion of the September 2006 Board decision that, in pertinent part, denied the appellant's claims for service connection for diabetes mellitus and a left knee disability and denied a rating in excess of 10 percent for right knee chondromalacia, and remanded the issues for compliance with the instructions in the joint motion. In September 2006, this matter came before the Board of Veterans Appeals (Board) on appeal from a December 1999 decision which, in part, denied an increased evaluation for chondromalacia of the right knee; an August 2000 decision which, in part, denied service connection for diabetes mellitus; an October 2001 decision that granted an increased rating to 10 percent for chondromalacia of the right knee, and a March 2004 decision which, in part, denied service connection for a left knee disability. In the August 2000 rating decision, the RO found, in part, that the claim for diabetes mellitus was not well grounded. The RO readjudicated and denied the claim on a de novo basis in March 2004. The appellant perfected an appeal as to the left knee and diabetes mellitus from the latter rating decision. The Board remanded this case for further development in accordance with the joint motion for remand in September 2008. It returns now for appellate consideration. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Board must remand to satisfy the duty to assist in obtaining records. While the case was on remand, the appellant submitted a set of authorized release forms so that the RO might obtain private medical records from Drs. Apostol and Duda and from the Southwest Missouri Bone and Joint Inc. The RO sent June 2009 letters outlining the request to each provider. The RO indicated on each letter that only records from January 2009 to the present were sought. The response from Southwest Missouri Bone and Joint includes records earlier than June 2009. Dr. Apostol indicated that the appellant did not receive treatment during the period requested (i.e. from June 2009 onward). Dr. Duda submitted records exclusively for 2009. Unfortunately, neither the appellant nor his representative indicated that treatment was limited to January 2009 onward. In sum, the Board fears that the record does not contain all relevant records to make a fair decision on appeal. Accordingly the Board must remand to assure an adequate record on review and comply with VA's duty to assist. See Loving v. Nicholson, 19 Vet. App. 96 (2005). In addition, a compensation examination is needed with regard to the appellant's right knee disability as the June 2009 VA examination report on file focuses primarily on his left knee disability. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain such records as are available from Drs. Apostol and Duda identified by the appellant's June 2009 authorized release forms. All efforts to obtain these records should be fully documented. Should the records not be obtained, the appellant should be notified of this fact. The request for records should not contain a date restriction. 2. The AMC must schedule the veteran for a VA orthopedic examination to determine the extent of his service-connected right knee disability. The claims folder must be made available to the physician for review of the relevant evidence in conjunction with the examination. The report of examination should contain a detailed account of all manifestations of the veteran's right knee disability found to be present. The medical basis for all opinions expressed should also be given. 3. Then, the RO should readjudicate the claims on the merits. If the benefits sought are not granted, the appellant and his representative should be furnished a SSOC and afforded a reasonable opportunity to respond before the record is returned to the Board for further 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 Supp. 2009). _________________________________________________ K. PARAKKAL 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) (2009).