Citation Nr: 1310120 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 10-38 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an increased evaluation in excess of 20 percent for service-connected traumatic arthritis, degenerative disc disease L4-5. 2. Whether new and material evidence has been submitted to reopen the claim for service connection for a left knee condition. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1978 to March 1982 and September 1990 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. A hearing was held before a Decision Review Officer (DRO) at the RO in May 2012. A transcript of that proceeding has been associated with the claims file. A review of the Virtual VA paperless claims processing system revealed VA outpatient treatment records dated November 2010 to July 2012 The issue of entitlement to service connect for a left knee condition is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran was not shown to have a forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine in any period pertinent to this appeal. 2. The RO denied service connection for a left knee condition in a July 2006 rating decision. The Veteran was notified of the decision and of his appellate rights that month, but did not appeal. 3. The RO declined to reopen a claim for entitlement to service connection for a left knee condition in a April 2009 rating decision. The Veteran was notified of the decision and of his appellate rights that month. The Veteran filed a Notice of Disagreement on April 2009, received a Statement of the Case (SOC) on July 2010, and perfected his appeal in a September 2010 VA Form 9. 4. Evidence submitted since the July 2006 decision is not cumulative or redundant, relates to an unestablished fact necessary to substantiate the claim, and triggers VA's duty to assist by obtaining a medical opinion. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for traumatic arthritis, degenerative disc disease L4-5, are not met. 38 U.S.C.A. § 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2012). 2. The July 2006 rating decision, which denied entitlement to service connection for a left knee condition, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 3. New and material evidence has been received to reopen a claim for service connection for a left knee condition. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 369 (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). But "[i]n cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled." Dingess/Hartman, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007) (noting that once an initial VA decision awarding service connection and assigning a disability evaluation and effective date has been made, section 5103(a) notice is no longer required). Additionally, where service connection has been granted, the claimant bears the burden of demonstrating prejudice from defective notice with respect to downstream elements such as effective dates or disability ratings. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). The Veteran has made no such assertions here. Accordingly, regarding the initial evaluation for the Veteran's back condition, VA's duty to notify has been satisfied. As the Board has decided to reopen the Veteran's claim for service connection for a left knee condition, no discussion of VA's duty to notify and assist within the context of that issue is necessary. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records and VA medical records have been obtained. VA provided the Veteran with adequate medical examinations in February 2009, June 2010, and March 2012. The examinations were adequate because they contained a history obtained from the Veteran and thorough examinations relevant to the applicable rating criteria. They also addressed the functional effects caused by the Veteran's disabilities, to include the effects on his occupation and usual daily activities. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486. Legal Criteria Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2012). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). In resolving this factual issue, only the specific factors as enumerated in the applicable rating criteria may be considered. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Veteran's back condition is rated as 20 percent disabling under the diagnostic code for lumbosacral or cervical strain in accordance with the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. A 20 percent evaluation is warranted for flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Id. Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40 , 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, the VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court also has recently held, that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. New and Material A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board without consideration in that decision in accordance with the provisions of § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decisionmakers. "Material" evidence is evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. In determining whether new and material evidence has been submitted, the evidence is generally presumed to be credible. See Kutscherousky v. West, 12 Vet. App. 369 (1999) (per curium). In addition, all of the evidence received since the last final disallowance shall be considered in making the determination. See Evans v. Brown, 9 Vet. App. 273, 283 (1996). In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court recently held that when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Analysis Back Condition In a March 2006 rating decision, the Veteran was granted an increased evaluation of 20 percent for his back condition, effective April 23, 1999. The Veteran later filed a claim for an increased evaluation in September 2008. The Veteran indicated in his claim that he had arthritis of the lumbar spine. At his May 2012 DRO hearing, the Veteran indicated that he had been experiencing a dull and sharp pain in his lower back that is constant. He claimed that he has sharp, shooting pains about three to four times per week and stops him from completing activities for about thirty minutes to one hour. The Veteran also complained of radiating pain going down the left extremity to the ankle and the occurrence of muscle spasms two to three times per week. The Veteran indicated that his symptoms have gradually worsened over the years and that his condition affects his sleep, occupational, and daily activities. A review of the Veteran's VA outpatient treatment records revealed that the Veteran had been treated for his back condition. There was no indication of ankylosis. No range of motion testing was shown in those records as well. The Veteran was administered a VA examination in February 2009. At this examination, the examiner noted the Veteran's history of low back pain since an in-service injury in 1978. Pain was reported at a severity of 9 on a scale of 1 to 10. The Veteran stated that the pain is daily and lasts the entire day. The pain was located in the lower back and there were no complaints of radiation. The Veteran reported flare-ups after physical activity at work and intermittent muscle spasms that were at a severity of 10 on a scale of 1 to 10. There was objective findings of mild pain to palpation on the left side of the lumbar region. Reflex, sensory, and motor examinations were all normal. The examiner provided range of motion testing which revealed a flexion of 85 degrees, extension of 25 degrees, bilateral lateral flexion of 30 degrees, right lateral rotation of 40 degrees, and left lateral rotation of 45 degrees. No evidence of pain with motion was noted and there was no additional pain or loss of motion after repetition. The Veteran was diagnosed with mild degenerative disc disease lumbar spine, without objective findings of radiculopathy. The Veteran was administered an additional VA examination in June 2010. At this examination, the examiner noted the Veteran's history of low back pain. The Veteran reported symptoms of weakness, fatigability, and lack of endurance, especially during flare-ups. Pain was reported at a severity of 5 on a scale of 1 to 10. The Veteran stated that the pain is chronic and associated with a throbbing. There were also complaints of stiffness with muscle spasms that occurred about twice weekly. The Veteran reported flare-ups manifested by a sharp pain that were at a severity of 9 on a scale of 1 to 10. The flare-ups occurred twice weekly and lasted for about two hours. The Veteran also reported during flare-ups that the pain radiates down his left leg all the way down to the left ankle. Reflex, sensory, and motor examinations were all normal. No objective findings of radiculopathy were noted. The examiner provided range of motion testing which revealed a flexion of 80 degrees, extension of 30 degrees, bilateral lateral flexion of 30 degrees, and bilateral lateral rotation of 45 degrees. No evidence of pain with motion was noted and there was no additional pain or loss of motion after repetition. The Veteran was diagnosed with degenerative arthritis of the lumbosacral spine, without objective findings of radiculopathy. The Veteran was administered an additional VA examination in March 2012. At this examination, the examiner noted the Veteran's history of low back pain going back to an injury in service in 1978. The Veteran reported symptoms of pain in the lower left back, just above the waistline. He also reported occasions of sharp and fleeting pain going down the left leg to the left ankle. The Veteran reported flare-ups manifested by a sharp pain that were at a severity of 10 on a scale of 1 to 10. The flare-ups occurred once to twice weekly and lasted for about one to two hours. The Veteran also reported during flare-ups that the pain radiates down his left leg all the way down to the left ankle. Reflex and motor examinations were all normal. Sensory examination revealed decreased light touch on the lower left extremity. The examiner provided range of motion testing which revealed a flexion of 65 degrees, extension of 15 degrees, right lateral flexion of 20 degrees, left lateral flexion of 15, and bilateral lateral rotation of 30 degrees. Pain was noted at 60 degrees on flexion and 15 degrees on extension. There was no evidence of additional pain or loss of motion after repetition. The examiner noted subjective tenderness in the lower lumbar area to the left. The Veteran was diagnosed with osteoarthritis, degenerative arthritis of the spine. The examiner also found that the Veteran did not have objective evidence of radiculopathy. It was noted that there were no effects of the Veteran's back condition on his ability to work. Based on the above, the Board finds that the Veteran's low back condition only meets the criteria for a 20 percent evaluation throughout the entire appeal period. In order to warrant the next higher evaluation, the evidence must show a forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Because the medical evidence of record has not at any time during the pertinent appeals period shown the presence of a limitation of motion even close to that contemplated by the Schedule, as the Veteran's flexion has only decreased from 85 degrees to 65 degrees over a three year period, nor has there been any indication of favorable ankylosis, the Board finds that the Veteran is not entitled to an evaluation in excess of 20 percent for his low back condition. Consideration has also been given regarding whether the schedular evaluations are inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of 'an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b)(1); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). In this regard, the schedular evaluations in this case are not inadequate. Ratings in excess of those assigned are provided for certain manifestations of the service-connected low back strain, but the evidence reflects that those manifestations, namely the presence of a more substantial limitation of motion, are not present. The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's low back strain, as the criteria assess social and occupational impairment to include addressing various limitations of painful motion. Furthermore, the Board takes notice of the Veteran's complaints of daily pain and finds that he is competent to testify as to the severity of the symptomatology associated with her low back pain during and after service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, his statements are presumed credible, as his complaints of pain have remained consistent in both his lay testimony and the medical record. However, his current evaluation of 20 percent, which is above the minimum compensable rating of 10 percent, already takes pain into consideration in accordance with 38 C.F.R. § 4.59, in which it states that it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Therefore, the Veteran's current rating appropriately contemplates the scope of his complaints. Accordingly, referral is not required. The evidence of record does not warrant ratings in excess of those assigned for the Veteran's low back condition at any time during the period pertinent to this appeal. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2010). Left Knee Condition In a July 2006 rating decision, the RO denied a claim for service connection for a left knee condition, on the basis that the evidence did not show that this condition was caused or aggravated by the Veteran's service-connected traumatic arthritis, degenerative disc disease L4-5, nor was there evidence of chronicity. The evidence considered at this time consisted of the Veteran's service treatment records, VA outpatient treatment records dated January 2005 to October 2005, and a June 2006 VA examination report. The Veteran was notified of that decision and of his appellate rights by way of letter sent to him on July 31, 2006. He did not appeal that rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the July 2006 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1105 (2012). The RO received the instant petition to reopen the claim in September 2008. The evidence received since the July 2006 RO decision includes written statements, VA treatment records dated May 2008 to July 2012, a June 2010 VA examination report and a transcript of testimony from the Veteran at a May 2012 DRO hearing. The Veteran's service treatment records show that the Veteran was seen on several occasions during his initial active duty service from March 1978 to March 1982 for complaints of left knee pain. The Veteran's 1982 separation examination was negative for complaints or diagnoses of knee conditions. In his written statements, the Veteran indicated that he sustained a left knee injury while he was serving in Operation Desert Strom in 1990 to 1991. In particular, he stated that his injury occurred in Saudi Arabia, and that he also sustained subsequent injuries further injuring his left knee at Fort McClellan and Fort Rucker. He also indicated that he had been diagnosed with arthritis in his left knee. The Veteran stated that it is very difficult to even walk down stairs and perform his job every day. At his March 2012 DRO hearing, the Veteran related that his condition began initially in service in 1978 and then was aggravated and worsened during service during Operation Desert Storm. The Veteran further stated that he had knee surgery in 2004 or 2005 at the VA Medical Center. The Veteran's written statements and testimony constitute new evidence as they were not previously considered by the RO. Since the lack of evidence demonstrating chronicity of the Veteran's left knee condition from the time of onset in service, as shown by the service treatment records, was a basis for the denial of the claim in the last final rating decision, in order to be material, any new evidence must relate to this unestablished fact and/or at least trigger the duty to assist by providing a medical opinion. See 38 C.F.R. § 3.303 (2012); see also Shade, 24 Vet. App. at 117. The Veteran's service treatment records, written statements, and testimony essentially indicate that his left knee condition was incurred during his initial period of service. Further, the Veteran's written statements and testimony indicate that this left knee condition worsened in severity during his later service in support of Operation Desert Storm, and that such worsening was permanent, as it has continued to this day. The Board notes that the Veteran is competent to testify as to the severity of the symptomatology associated with his left knee condition during and after service. See Jandreau, 492 F.3d at 1372. Additionally, his statements are presumed credible for the purposes of determining whether new and material evidence has been submitted. In short, the new evidence relates to an unestablished fact of chronicity. Hence, it is material. It also triggers VA's duty to assist by providing a medical opinion. As new and material evidence has been received, the claim is reopened. The Veteran's appeal to this extent is allowed. ORDER Entitlement to an increased evaluation in excess of 20 percent for service-connected traumatic arthritis, degenerative disc disease L4-5 is denied. New and material evidence has been received to reopen the claim of entitlement to service connection for a left knee condition; the appeal is granted to this extent. REMAND Having reopened the Veteran's service connection claim for service connection for a left knee condition, VA has a duty to assist the Veteran in the development of the claim by seeking a medical opinion on the question of causal nexus and obtaining any outstanding treatment records. Service treatment records show that the Veteran was seen in June 1979 for complaints of bilateral knee pain with use. Examination of the knee was negative for effusion and negative for drawer signs. The impression was chondromalacia of the patellar. The Veteran was placed on profile against kneeling. The Veteran was seen again in January 1982 for complaints of knee pain after running. The Veteran's March 1982 separation examination was negative for left knee complaints or diagnoses. The Veteran's National Guard records and service treatment records from his second period of active service were also negative for left knee complaints or diagnoses. VA outpatient treatment records show that since around March 2001, the Veteran has been treated for complaints of left knee pain. The records also reveal that the Veteran has received arthroscopic surgery, but no dates or treatment notes are found in the claims file. Further, the Veteran claims that he had knee surgery in 2004 or 2005 at the VA Medical Center. However, there are no VA outpatient treatment records within that date range in the claims file. In light of this evidence, the Board finds that he should be afforded a VA examination to address the questions of whether the Veteran's left knee condition was incurred as a result of service. See McLendon. v. Nicholson, 20 Vet. App. 79 (2006). As this case must be remanded for the foregoing reasons, any recent VA treatment records should also be obtained. The Board observes that the Veteran has received VA treatment for his knee disorder and records of his VA care, dated since July 2012, have not been associated with the claims file. Under the law, VA must obtain these records. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2011); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Further, as the Veteran and references in his VA outpatient treatment notes have indicated, records of his left knee arthroscopy appear to be missing. The Veteran indicated that these records may have occurred in 2004 or 2005. Accordingly, an attempt to obtain these records should be made as well. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. In particular, the Veteran's 2004 to 2005 records relating to the Veteran's left knee arthroscopy should be obtained. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After any new evidence has been associated with the claims file, the Veteran should be scheduled with an appropriate in-person examination to determine the etiology and severity of the Veteran's left knee condition. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner is requested to provide an opinion, in light of the evidence in the claims file, as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left knee condition had its onset in or is otherwise related to military service. The Veteran's lay statements regarding continued complaints of symptoms should be taken into account. An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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. 2012). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs