Citation Nr: 1306024 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 08-26 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right knee disorder, to include Osgood Schlatter's Disease or arthritis. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran had active military service from July 1972 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2010 and November 2011, the Board remanded this case for additional development. As the evidence of record indicated diagnoses of arthritis and meniscal injury during the course of the appeal, in addition to the claimed Osgood Schlatter's Disease, the Board recharacterized the issue on appeal to contemplate all currently diagnosed right knee disorders. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Unfortunately, still further development is required for a fair adjudication of the Veteran's claim. In connection with this appeal, the Veteran testified at a personal hearing before a Decision Review Officer (DRO) sitting at the RO in February 2008. A transcript of that hearing is associated with the claims file. Additionally, the Veteran requested a hearing before a Veterans Law Judge sitting at the RO in his August 2008 substantive appeal. However, in November 2009, he indicated that he would like the Board to make a decision without a hearing. As such, the request for a Board hearing is considered withdrawn. 38 C.F.R. § 20.704(e) (2012). The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. 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 The Board observes that the Veteran submitted a statement dated November 2012 requesting that medical treatment records pertaining to his right knee disorder be obtained from the VA Medical Center in Bath, New York. Although the Veteran did not specifically indicate that he currently receives treatment for his right knee disorder from the Bath VA Medical Center, the Board observes that the most recent VA treatment records associated with the Veteran's claims folder are dated in 2011. As such, it is likely that there remain outstanding VA treatment records pertaining to the Veteran's right knee disorder. The procurement of such pertinent VA medical reports is required. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). In light of the foregoing, the Board finds that an attempt should be made to identify and associate these records with the Veteran's claims folder. Accordingly, the case is REMANDED for the following action: 1. Associate all outstanding VA treatment records for the Veteran pertaining to his right knee disorder from the VA Medical Center in Bath, New York (specifically those dated from around 2011 onward) with the claims folder. All requests and responses, positive and negative, should be associated with the claims folder. 2. When the development requested has been completed, and after reviewing the newly submitted evidence and determining whether further evidentiary development is required, the Veteran's claim should be readjudicated. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See 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). _________________________________________________ LANA K. JENG 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).