Citation Nr: 1101028 Decision Date: 01/10/11 Archive Date: 01/20/11 DOCKET NO. 09-29 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a back disability. 2. Entitlement to service connection for a bilateral knee disability, to include as secondary to a back disability. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active service from May 1954 to May 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Veteran testified at a September 2010 Travel Board hearing. At the hearing, the Veteran submitted additional medical evidence along with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304 (2010). 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 has petitioned to reopen a claim of entitlement to service connection for a back disability and is seeking service connection for a bilateral knee disability. The Board finds that further development is warranted under the Veterans Claims Assistance Act of 2000 before these claims can be properly adjudicated. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §§ 3.159(c); 3.326(a) (2010). The duty to assist includes assisting the Veteran in obtaining relevant public and private records identified by the Veteran. See 38 C.F.R. § 3.159(c)(2)(3) (2010). A review of the record indicates that there may be additional treatment records not associated with the claims file. The Veteran's back claim was previously denied by a rating decision in October 1957. The basis of the denial was that chronic residuals of a back injury were not found on VA examination. The Veteran testified during his September 2010 hearing that post- service, he underwent back surgery in 1982 or 1983 and that he is currently receiving treatment for his back from Dr. Becliff. With regard to his knees, he testified that he has suffered from constant knee problems since he left service, and that he has undergone two knee replacements, with the first one performed in 1986 and the second one conducted in 1997. VA has a duty to obtain these records. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify and submit written authorization to obtain treatment records from the medical facilities where he underwent back surgery in 1982 or 1983 and for his knee replacements that took place in 1986 and 1997. The RO should also request that the Veteran submitt written authorization to obtain treatment records from Dr. Becliff. After securing proper authorization, if necessary, obtain and associate with claims folder copies of all treatment records of the Veteran relating to any back or knee disability. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his back disorder. The entire claims file must be made available to the VA examiner. Pertinent documents should be reviewed, including service treatment records. The examiner should conduct a complete history and physical and offer an opinion as to whether a back disorder at least as likely as not had its onset in service. If the examiner concludes that the back disorder is related to service, the examiner should also offer an opinion regarding the likelihood that any current knee disorder is secondary to or was aggravated by a back disability. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. All necessary diagnostic testing should be conducted and commented upon by the examiner. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Thereafter, the RO should readjudicate the claims. If either benefit sought on appeal is not granted in full, the Veteran and his representative should be provided with a supplemental statement of the case and an opportunity to respond. 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). _________________________________________________ MICHAEL MARTIN 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).