Citation Nr: 1306067 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 10-39 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: New Hampshire State Veterans Council WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from January 1983 to December 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, which denied the claim. The Veteran presented testimony at personal hearings before a Decision Review Officer (DRO) in June 2010 and before the undersigned Veterans Law Judge at the RO in August 2011. Transcripts of both proceedings are of record. This claim has been previously remanded by the Board in January 2012 in order to accomplish further evidentiary development. 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 This case was remanded in January 2012. Unfortunately, the Board finds that the requested action was not sufficiently completed and another remand is required. Stegall v. West, 11 Vet. App. 268 (1998). In the January 2012 remand, the Board ordered that arrangements were to be made to obtain the Veteran's complete treatment records from the VA Pacific Island Health Care System dated from 1992 to 2003. This was sufficiently accomplished. The January 2012 Board remand also directed the AMC/RO to obtain the complete treatment records from the Manchester, New Hampshire VA Medical Center (VAMC), dated from 2003 to the present. As part of a May 2009 VA Form 21-4138 the Veteran informed VA that all treatment has been accomplished through the VAMC since 2003. While a January 2012 letter from the AMC to the Veteran noted that it had requested records from the VA Pacific Island Health Care System and the Manchester VAMC, review of the post-January 2012 evidentiary record shows that an effort to obtain the VA outpatient medical records from the VAMC in Manchester was not in fact undertaken. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of that claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). These yet to be obtained VA medical records may contain information critical to the matter at hand, and VA regulations require VA to assist in obtaining such records. 38 C.F.R. § 3.159(c)(2) (2012). The record includes a March 2012 VA opinion obtained after the treatment records from the VA Pacific Island Health Care System were obtained. If additional VA medical records are obtained from the Manchester VAMC on remand, an addendum to the March 2012 VA medical opinion should be sought, and, if need be, the Veteran should be afforded a new VA orthopedic examination. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all VA treatment records from the VAMC in Manchester, New Hampshire, dating from January 2003 to the present. Efforts to obtain these records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). If the records are unavailable, the claims file must be properly documented as to the unavailability of these records. 2. If and only if, medical records are obtained from the Manchester VAMC, as ordered in 1. above, the AMC/RO should return the claims file, including a copy of this remand, to the physician who completed the March 2012 VA medical opinion. If he is not available, the Veteran's claims file must be made available to and reviewed by another appropriate medical professional. The examiner should provide a medical opinion that clearly specifies whether it is at least as likely as not that any currently identified right knee disorder(s) is related to the Veteran's service. The opinion must reflect consideration of the Veteran's documented in-service right knee treatment and his post-service right knee surgery in arriving at an opinion concerning any relationship between current disability and service. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. The RO/AMC should ensure that the requested action has been accomplished (to the extent possible) in compliance with this REMAND. If the ordered action has not been undertaken or is deficient in any manner, the RO/AMC must take appropriate corrective action. See Stegall. 4. Thereafter, readjudicate the appealed issue of entitlement to service connection for a right knee disorder. If the appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC) and afforded an applicable time to respond. The appellant 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 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. E. LARKIN 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).