Citation Nr: 1309986 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 08-03 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a disability rating in excess of 20 percent for service-connected degenerative joint disease of the left knee, status post arthroscopy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from March 1999 to March 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Houston, Texas, which determined that the Veteran's service-connected left knee disability warranted an increased 20 percent disability rating, effective as of April 26, 2006, the date of receipt of his claim. This matter was previously before the Board in October 2011 at which time it was remanded for additional development. It is now returned to the Board. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). A Report of General Information (VA Form 21-0820), dated in August 2012, shows that the Veteran contacted the RO and indicated that he wished to have his claim considered on the current clinical evidence, and that he was being treated by a private physician. A review of the Veteran's claims file reveals that the most recent private medical treatment records of record are dated in June 2010, and those do not appear to be complete as they are simply written excuses from physical activity. No effort has been undertaken to obtain any additional private treatment records following the August 2012 correspondence. VA has a duty to seek records of relevant treatment reported by private physicians. Massey v. Brown, 7 Vet. App. 204 (1994). VA has also adopted a regulation requiring that when it becomes aware of private treatment records it will specifically notify the claimant of the records and provide a release to obtain the records. If the claimant does not provide the release, VA has undertaken to request that the claimant obtain the records. 38 C.F.R. § 3.159(e)(2) (2012). As such this matter must be remanded so that an effort to obtain these records may be undertaken. Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his left knee disability should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall contact the appropriate VA medical facilities and attempt to obtain medical treatment records pertaining to the Veteran that have not yet been associated with his claims file. All records obtained shall be associated with the Veteran's claims file. 2. The RO/AMC shall contact the Veteran to ascertain if he has private treatment records for his asserted left knee disability. If an affirmative response is received, the Veteran shall be requested to forward any such private treatment records to the RO/AMC. In the alternative, he has be forwarded an Authorization and Consent to Release Information to the VA (VA Form 21-4142), and the RO/AMC shall obtain and associate with the claims file any identified private treatment records. If a negative response is received from the Veteran or from any identified medical care provider, such must be associated with the claims file. 3. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 4. The RO/AMC will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). _________________________________________________ J.A. MARKEY 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).