Citation Nr: 1302992 Decision Date: 01/28/13 Archive Date: 02/05/13 DOCKET NO. 07-01 085 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION The Veteran had active service from December 1960 to December 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 decision of the St. Louis, Missouri, Regional Office (RO). In September 2009, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge (AVLJ) and a transcript of the proceeding is of record. The Board previously remanded the appeal in April 2011 for additional development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In the April 2011 Board remand, the AMC/RO was directed to attempt to obtain records generated by the military police and Criminal Investigation Division (CID), relating to a claimed motor vehicle accident that the Veteran reports to have occurred while he stationed was in Friedberg, Germany. See Board Hearing Trans., Sept. 2, 2009, pp. 5-7. The U.S. Army Combat Readiness/Safety Center located at Fort Rucker, Alabama, was requested to provide these records to the AMC/RO but, in an April 2011 electronic mail response, the facility indicated the identified records were maintained by the U.S. Army Crime Records Center, located at Quantico, Virginia. Instead, the AMC/RO then requested the records from the U.S. Army Crime Records Center located at Fort Belvoir, Virginia, without documenting any basis for failing to request the records from the facility specifically identified by the U.S. Army Combat Readiness/Safety Center. The AMC/RO received multiple negative responses from the Fort Belvoir facility. Based on the forgoing, the Board finds the AMC/RO failed to adequately comply with the April 2011 Board remand instructions and the appeal is remanded to permit additional efforts to comply with this directive. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Stegall v. West, 11 Vet. App. 268 (1998) (the Veteran has right to VA compliance with terms of Board remand order). In connection with the April 2011 Board remand instruction to attempt to obtain right knee treatment records from the private Lufkin Hospital, the AMC/RO received an August 2012 response from the relevant facility stating the records could not be located but that additional identifying information (e.g., the type of treatment, the date(s) of treatment(s), etc.) should be supplied to permit further efforts to provide any of the requested records. The Veteran has made clear he underwent right knee surgery at this facility in approximately 1974 or 1976, but the AMC/RO failed to provide this requested information to the private medical facility. See "Comments," Authorization and Consent to Release Information to the Dept. of Veterans Affairs (VA) (VA Form 21-4142), May 3, 2011; Board Hearing Trans., Sep. 2, 2009, p. 9. As such, the AMC/RO has not sufficiently complied with the April 2011 Board remand instructions on the matter, requiring remand of the appeal to permit such efforts. Finally, the record suggests the Veteran receives regular right knee treatment from a VA medical facility, but relevant VA treatment records, dated since August 2012, are not of record in either the paper or electronic claims file. VA is obligated to attempt to obtain and consider these records in adjudicating this appeal. 38 U.S.C.A. § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). Moreover, in light of the number of likely relevant outstanding records at this time, VA must also afford the Veteran a contemporaneous VA examination, with respect to his right knee claim. See 38 C.F.R. § 4.16(a); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran he may submit lay statement from individuals that have first-hand knowledge of his right knee symptomatology, including any possible relationship to service. 2. Undertake appropriate efforts to attempt to obtain any right knee treatment and/or hospitalization records from Woodland Heights Medical Center (previously known as the Larkin Hospital), in Lufkin, Texas. The request should include the Veteran's identifying information, and an indication that he underwent right knee surgical intervention at the facility in approximately 1974 or 1976. All development efforts must be associated with the claims folder. 3. Contact the U.S. Army Criminal Investigation Command, U.S. Army Crime Records Center, Attn: CICR-FP, Russell Knox Building, 27130 Telegraph Road, Quantico, VA 22134-2253 (and any other appropriate records depository), and request that it conduct a search for any military police and CID records related to the Veteran's claimed motor vehicle accident, occurring approximately between July 1963 and September 1963, while attached to the 3rd Medium Tank Battalion, 32nd Armor, 3rd Armor Division, in Friedberg, Germany. In the event the records are not maintained at the Quantico facility, written documentation of such fact should be associated with the claims folder. Any negative response should be in writing and associated with the claims folder. 4. Obtain all outstanding VA right knee hospitalization and treatment records, dated since August 2012. Any negative response(s) should be in writing and associated with the claims folder. 5. After the aforementioned development has been completed, the Veteran must be afforded a VA examination, to determine the nature, onset and etiology of his claimed right knee condition. The claims folder must be made available to, and reviewed by, the examiner with such review noted in the provided report. The examiner should record the full history of the condition, including the Veteran's account of symptomatology. The examiner should note all right knee pathology found to be present, if any. Then, with regard to each diagnosed right knee condition, the examiner should opine as to whether it is at least as likely as not (a degree of probability of 50 percent or higher) that the diagnosed right knee condition: (i) had its onset in service or within one year of separation; and (ii) is related to the Veteran's period of active military service, including any reported in-service motor vehicle accident. The examiner should also comment on whether any diagnosed right knee condition found on examination is consistent with the Veteran's claimed right knee symptomatology. The provided examination report must reflect consideration of both the medical and lay evidence of record and set forth a complete rationale for all findings and conclusions. If the requested opinion cannot be provided without resort to mere speculation, the examiner should expressly state this and should explain why the opinion cannot be provided without resort to mere speculation. 6. Then, readjudicate the appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC). An appropriate period of time should be allowed for response The Veteran has the right to submit additional evidence and argument on the matter 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. 2012). _________________________________________________ M. N. HYLAND 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) (2012).