Citation Nr: 1311211 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 08-06 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for residuals of a left knee injury. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1955 to April 1957. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In October 2009, the Veteran testified at a Travel Board hearing before the undersigned. A copy of the hearing transcript is associated with the claims file. In November 2009, the Board remanded this case for further evidentiary development. In a January 2011 decision, the Board, in relevant part, denied the Veteran's claim of entitlement to service connection for residuals of a left knee injury. In April 2011, the Board denied the Veteran's motion for reconsideration of the January 2011 denial of the claim. The Veteran appealed the January 2011 decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2012 Memorandum Decision, the Court vacated the Board's January 2011 decision with respect to the issue of service connection for residuals of a left knee injury and remanded the claim for readjudication consistent with the Court's Memorandum Decision. The appeal has now been returned to the Board for consideration in accordance with that Memorandum Decision. In March 2013, the Veteran submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304 (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Veteran contends that he has a current left knee disability due to a September 1956 football related left knee injury, reportedly a left knee sprain and/or torn ligament, sustained during service. As set out in the introduction, the claim was denied by the Board in January 2011 but that decision was vacated by the Court in August 2012. The Memorandum Decision that addressed the Board's January 2011 decision faulted the Board for failing to obtain relevant treatment records adequately identified by the Veteran and for its acceptance of and reliance on the March 2010 VA examiner's opinion which was found to be inadequate for the purpose of adjudication of the claim. Specifically, the Court found the March 2010 opinion to be inadequate due to the examiner's (1) failure to consider the Veteran's and FG's lay statements concerning the incurrence of a football related left knee injury during service; (2) failure to adequately address the question presented in the Board's November 2009 remand, and; (3) lack of adequate supporting rationale with sole reliance on the nonexistence of service treatment records documenting the claimed in-service left knee injury. In light of the Court's decision, the Board finds that the claim must be remanded for the purpose of seeking relevant treatment records identified by the Veteran and to afford the Veteran a new VA examination with medical opinion as to the nature and etiology of any currently diagnosed left knee condition. As to treatment records adequately identified by the Veteran, in his October 2005 claim for service connection for residuals of a left knee injury, he indicated that he received treatment for a left knee sprain and swelling in September and November 1956 at an infirmary in Mohringen, Germany. During the October 2009 hearing, he testified that he received treatment for left knee pain and swelling immediately following the incident at a military infirmary in Stuttgart, Germany. At that time, he was reportedly told that he had to "lay off" of his left knee for several days. In April 1969 claim for back pain, the Veteran referred to the facility in Stuttgart, Germany as "General Army Hospital." The Board observes that the Veteran's service personnel records are not associated with the claims file. There is no indication that his service personnel records, which may contain documentation as to any limited physical profiles during service, have been requested. Additionally, there is no indication sick/ morning or clinical treatment reports have been requested pertaining to the Veteran and any treatment received for a left knee injury. As such records are relevant to the issue on appeal, such records must be sought. As to any post-service treatment received for residuals of the claimed in-service left knee injury, the Veteran has repeatedly reported that he has received VA treatment at the Tuskegee VA Medical Center. He has dated such treatment between October 1966 and October 1967. Multiple attempts have been made to obtain the records alluded to, however, negative responses have been received. Most recently, such records were requested in January 2010, however, the Board notes that the Veteran's first name was misspelled. February 2010 correspondence from the Central Alabama VA Health Care System indicated that "the system of records named does not contain a record retrievable by [the requested] name or file number." The February 2010 correspondence, however, contained the correct spelling of the Veteran's first name. In this regard, in June 2011, the Veteran submitted a September 1970 VA treatment record from the Tuskegee VAH pertaining to treatment received for back pain which shows that his name was misspelled at that time. Accordingly, the Board finds that an additional request for records pertaining to all treatment received at the Tuskegee VA hospital dating since the Veteran's discharge from service is necessary, using both spellings of the Veteran's first name as described in the documents above. As to identified relevant post-service private treatment records, the Veteran submitted VA Form 21-4142s in October 2005 and March 2006 indicating that he received treatment for left knee complaints from Dr. A at Alabama State University from October 1957 to May 1961. While the March 2006 authorization indicates that Dr. A is now deceased, as explained by the Court, such records must still be sought. Also, an October 1992 private orthopedic treatment record from Dr. KJ at HOC indicates that there are additional treatment records pertaining to diagnosis and treatment of suprapatellar plica of the left knee dating from July 1992 through at least September 1993. In this regard, a September 1993 treatment note from Dr. KJ states that the Veteran remained under his care at that time. Thus, private treatment records dating since July 1992 must be sought from Dr. KJ. Also, in June 2011, the Veteran submitted a orthopedic treatment record from Dr. JW at the OCAE that reflects orthopedic treatment for mechanical low back syndrome since July 1977. Also, as noted above, the Veteran submitted additional orthopedic treatment records from Dr. RM, also at the OCAE, dated in January 2013, which shows that the Veteran related complaints of left knee pain on that occasion to injury sustained during service. Additional findings and diagnoses at that time included a left knee varus malalignment and medial compartment arthritis. As the there may be additional relevant orthopedic treatment records from Dr. JW that may contain incidental orthopedic findings pertaining to the left knee, all treatment records dating since July 1977 should be requested from the OCAE, to include treatment provided by Dr. JW since 1977 and Dr. RM, as shown in the January 2013 treatment note. Finally, any additional and/or updated VA and private treatment records identified by the Veteran should be obtained and associated with the claims folder. 38 U.S.C.A. § 5103A(c) (West 2002); 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: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 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 any orthopedic condition since his April 1957 discharge from service. After the Veteran has signed the appropriate releases, to include for Dr. A (currently deceased) at Alabama State University, dating from October 1957 to May 1961; Dr. KJ at HOC, dating since June 1992; and Dr. JW and Dr. RM at OCEA, dating since July 1977, those records should be sought. Also, using both spellings of the Veteran's first name as alluded to above, contact any appropriate records repositories and request any post-service VA treatment records, to include retired and/or archived records, from the Tuskegee VAH/VAMC, dating since April 1957. If the RO/AMC cannot locate the requested records, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. Using both spellings of the Veteran's first name, the RO/AMC must request from all appropriate records repositories, to include the NPRC, the Veteran's complete service personnel records, as well as any sick/morning reports and clinical treatment records pertaining to the Veteran and any treatment received for residuals of a knee injury at Army hospitals and/or infirmaries located in Mohringen and Stuttgart, Germany from September through December 1956. All pertinent follow-up must be undertaken. 3. Thereafter, schedule the Veteran for an appropriate VA examination to determine the nature, onset, and etiology of any currently diagnosed left knee condition. All indicated tests must be accomplished. The claims folder, to include any relevant records in Virtual VA, and a copy of this REMAND must be made available to the examiner. The examiner must acknowledge that this review was completed. After examining the Veteran, obtaining a thorough medical history from him, and reviewing all pertinent documents in the claims file, the examiner must opine whether it is at least as likely as not (50 percent or greater likelihood) that any diagnosed disability of the left knee had its onset during or was caused by any incident of the Veteran's military service, to specifically include the 1956 football related left knee injury as alleged by the Veteran. The examiner must specifically acknowledge and address notation on a February 1961 reserve examination report of a history of swollen joints during football season; the Veteran's statements of record as to the 1956 left knee injury with left knee problems ever since, and the need to ice his knee during sports participation ever since; the July 2007 buddy statement from the officer in charge of football program and who allegedly witnessed the claimed 1956 left knee injury; newspaper clippings that suggest that the Veteran was a key player on the football team during service; and all relevant medical records. A full rationale for all opinions and conclusions must be provided. 4. After the development requested has been completed, review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the examination report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 5. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal is not granted, issue a supplemental statement of the case, and afford the Veteran and his representative an opportunity to respond. Thereafter, the case must be returned to the Board, if in order. The Veteran has the right to submit additional evidence and argument on this matter. 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). _________________________________________________ A. C. MACKENZIE 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).