Citation Nr: 1114652 Decision Date: 04/14/11 Archive Date: 04/21/11 DOCKET NO. 09-48 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for nerve damage of the right leg secondary to surgical repair of the right knee. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Forshey, Law Clerk INTRODUCTION The Veteran had active duty from October 2000 to March 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action is required. REMAND In this case, the Board finds that further development is necessary before the claim may be adjudicated. Specifically, service treatment records (STRs) dated after April 2002 are not of record. Additionally, the Veteran's August 2008 claim references treatment at the VAOPC in Pensacola, Florida. However, after a thorough review of the claims file, it is noted that these medical records are not associated with the case file. Accordingly, the RO should attempt to obtain the missing STRs and VA treatment records. Moreover, although the Veteran's DD-214 indicates that he was discharged "under honorable conditions," his "narrative reason for separation" was for "misconduct." Accordingly, the Board finds that his service personnel records are relevant and should be obtained. Finally, it appears that an item(s) was received at the Waco, Texas, RO in November 2009, but the Board is unclear if this item(s) has been associated with the claims file. The RO in St. Petersburg should thus contact the Waco RO to ensure that all items have been associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter requesting that he provide the names, addresses, and approximate dates of treatment for all health care providers who may have additional records pertinent to the remanded claim. 2. After the Veteran has signed any necessary releases, the RO should make as many attempts as necessary to obtain all pertinent records identified by the Veteran not already associated with the claims file, specifically with respect to the treatment records located at the VA outpatient clinic located in Pensacola, Florida, since March 2003. Additionally, the RO should contact the National Personnel Records Center (NPRC) in St. Louis, Missouri, the service department, and/or any other appropriate Federal Government record custodian, to attempt to obtain all outstanding service treatment records and the Veteran's entire service personnel record. Also, contact the Waco RO and determine whether there is any missing evidence that has been mislocated and should be associated with the claims file. All records obtained must be associated with the claims file. Further, all attempts to procure any identified records must be documented in the claims file and, if any records cannot be obtained, a notation to that effect should be inserted in the file. To the extent that any records sought are found not to exist, the RO should issue a Formal Finding of Unavailability, and the Veteran must to be notified of any unsuccessful efforts in order to allow him the opportunity to obtain and submit those records for VA review. 3. If completion of the above development results in the addition of relevant records to the claims file, then the Veteran should be scheduled for VA examination. In such case, the claims file must be sent to the examiner for his or her review. The examiner should review the pertinent evidence, including the Veteran's lay assertions, and undertake any indicated studies. Then, based on the results of the examination, the examiner should provide the likely etiology of the neurologic disorder of the right knee, responding to the following: a. Does the Veteran have a current neurologic disorder of the right knee? If so, state the diagnosis(es)? If the examiner determines that the Veteran does not have a current neurologic disorder, are there neurologic symptoms that represent either (a) separate and distinct disabilities or sets of symptoms or (b) indistinguishable manifestations of his service-connected right patellar fracture and/or right knee scar. b. If the examiner determines the existence of a right knee neurologic disorder, is it at least as likely as not (50 percent or more degree of probability) that any such disorder began or was aggravated during active service, or is causally linked to any incident of such service, to include trauma? Or, did it have its onset within one year of service? c. If the examiner determines that a right knee neurologic disorder did not begin during service, is it at least as likely as not (50 percent or more degree of probability) that such disorder was either (a) caused or (b) aggravated by the Veteran's service-connected right patellar fracture or service connected right knee scar? The clinician is advised that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression rather than a temporary flare-up of symptoms. The examiner should prepare a printed (typewritten) report setting forth all examination findings, along with a complete rationale for all opinions and conclusions reached. It is imperative that the examiner offer a detailed analysis for all conclusions and opinions reached supported by specific references to the Veteran's claims file, including the in-service and post-service medical records, and the Veteran's lay assertions, as indicated. 4. After completing the requested actions, and any additional notification and/or development warranted by the record, the RO should readjudicate the remanded claim in light of all pertinent evidence and legal authority and addressing all relevant theories of entitlement. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative, if any, an appropriate Supplemental Statement of the Case (SSOC) that includes clear reasons and bases for all determinations, and affords the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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. 2010). _________________________________________________ ERIC S. LEBOFF Acting 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) (2010).