Citation Nr: 1314929 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 10-40 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for residuals of a back injury. 2. Entitlement to service connection for residuals of a knee injury. 3. Entitlement to service connection for residuals of a neck injury. 4. Entitlement to service connection for a shoulder disorder. 5. Entitlement to service connection for memory loss. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had active service from February 1979 to July 1979, and from April 1981 to May 1987. This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence. This case was previously before the Board in June 2011, wherein it was remanded in order to obtain additional private treatment records and VA examinations. The case was returned to the Board for appellate consideration. The Board finds that there has been substantial compliance with the directives of the remand, as the Veteran was requested to provide authorization to obtain additional private treatment records (he did not respond) and he was afforded VA examinations. As such, an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to service connection for memory loss 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 did not engage in combat with the enemy during service. 2. The Veteran did not sustain a disease or injury of the back during service. 3. The Veteran did not experience chronic symptoms of a back disorder during service. 5. The Veteran did not experience continuous symptoms of a back disorder after service. 6. Arthritis of the back did not manifest within one year of separation from service. 7. The post-service symptoms diagnosed as degenerative joint disease/degenerative disc disease of the thoracolumbar spine are not related to service. 8. The Veteran did not sustain a disease or injury of either knee during service. 9. The Veteran does not have a current disability of either knee. 10. The Veteran did not sustain a disease or injury of the neck or cervical spine during service. 11. The Veteran did not experience chronic symptoms of a neck or cervical spine disorder during service. 10. The Veteran did not experience continuous symptoms of a neck or cervical spine disorder after service. 11. Arthritis of the or cervical spine did not manifest within one year of separation from service. 12. The post-service symptoms diagnosed as degenerative joint disease/degenerative disc disease of the cervical spine are not related to service. 13. The Veteran did not sustain a disease or injury of either shoulder during service. 14. The Veteran does not have a current disability of either shoulder. CONCLUSIONS OF LAW 1. A back disorder was not incurred in active service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1112, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. The criteria for service connection for a knee disorder are not met. 38 U.S.C.A. §§ 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 3. A neck disorder was not incurred in active service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1112, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 4. The criteria for service connection for a shoulder disorder are not met. 38 U.S.C.A. §§ 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued a notice letter, dated in February 2009, to the Veteran. This letter explained the evidence necessary to substantiate the Veteran's claims for service connection, as well as the legal criteria for entitlement to such benefits. The letter also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran's complete service treatment records from his entire period of active duty service are unavailable. Correspondence dated in June 1992 shows the National Personnel Records Center indicated the records are unavailable. In February 2009, the Veteran was informed that his service treatment records were not available and what efforts were made to try to obtain the records, including requesting any records in the Veteran's possession. The Veteran did not indicate that he had any records to submit. In appeals where a veteran's service treatment records are unavailable, there is a heightened obligation to assist in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005). In February 2009, the Veteran was informed the service treatment records were not available and what efforts were made to try to obtain the records, including requesting any records in the Veteran's possession. The Veteran subsequently indicated he had no records to submit. Nonetheless, the claims the claims file contains reports of private and VA post-service treatment, the Veteran's own statements in support of his claims, and the history, findings, diagnoses, and opinions from a VA examination. The Veteran was examined by VA in connection with his back, knee, neck, and shoulder claims in February 2013. The Board has reviewed the examination report, and finds that it is adequate for the purpose of deciding the issues on appeal. The February 2013 VA examination report contains all the findings needed to decide the claims for service connection, including history of injury and symptoms, clinical examination finding, diagnoses (or findings of no current disability), and etiology opinions for disabilities found. With regard to the claims for service connection for residuals of a back injury and neck injury, the February 2013 VA examiner offered opinions as to etiology of the diagnosed disabilities, and supported the opinions with a rationale. With regard to the claims for service connection for residuals of a knee injury and shoulder disorder, there is competent medical evidence showing no current disability of these joints, so no nexus opinion is necessary. The February 2013 VA examination report includes clinical testing and X-ray examination reports regarding the knees and shoulders, and specific findings by the VA examiner of no knee or shoulder disorders. The assessment was based on a thorough review of history, current complaints, and various specific clinical findings. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). In addition, the Veteran has not alleged that the examination is inadequate to decide the current claims, so it is presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Service Connection It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). In this case, the Board has thoroughly reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Veteran has been diagnosed with a "chronic disease" of arthritis listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies to the claims of service connection for back and neck disorders. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has been diagnosed with degenerative joint disease of the cervical spine, which is arthritis of the spine; the Board acknowledges that the Veteran was diagnosed with degenerative disc disease of the thoracolumbar spine, which is not considered a chronic disease of arthritis, but that the VA examiner also indicated that the Veteran had been diagnosed with arthritis of the thoracolumbar spine. Nonetheless, the Veteran's claimed knee and shoulder disorders, and memory loss are not listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to those disabilities. Arthritis is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies to that disability. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Service Connection for Back and Neck Disorders The Veteran contends that his claimed back and neck disorder are due to a motor vehicle accident in service. In this Veteran's case, the evidence does not show, nor does the Veteran allege, that he engaged in combat with the enemy during active service. For this reason, 38 U.S.C.A. § 1154(b) is not applicable in this case. After a review of all the evidence, the Board also finds that the weight of the evidence shows no in-service injury or disease of the back or neck in service, and that symptoms of a back or neck disorder were not chronic in service. The Board has considered that the Veteran's complete service treatment records are unavailable, and has not used the absence of treatment entries during service as a factor that weighs against the claim; instead, the Board has carefully considered the evidence that is of record and carefully considered the heightened duty to consider carefully the benefit of the doubt rule. The Board has considered the Veteran's own reported histories of injury, treatment, and symptoms. For example, the Veteran's 1991 VA treatment records show that the Veteran reported experiencing a head injury as a result of a 1981 motor vehicle accident. Against this history, the Board has weighed and considered the complete service personnel records that have been associated with the claims file that do not reflect the occurrence of a 1981 motor vehicle accident. Resolving reasonable doubt in the Veteran's favor on the question of whether he sustained a head injury in service in 1981, the Board finds that a motor vehicle accident occurred during service; however, the Veteran did not allege any injuries at that time other than to the head. Such evidence tends to show that the Veteran did not sustain an injury to the back, neck, knees, or shoulders during the in-service motor vehicle accident in 1981. Consistent with this finding, the Veteran's own post-service history in 1991 reflects no reported history of a back, knee, neck, or shoulder injury in service, or complaints, treatment, or diagnosis of back, knee, neck, or shoulder disorder either during service or at service separation in November 1964. The Board next finds that the weight of the evidence demonstrates that symptoms of a back and neck disorder have not been continuous since service separation in May 1987. The Veteran first filed a claim for service connection for back and neck disorders in January 2009, over 21 years after leaving service. The evidence shows that the Veteran's current back and neck disorders first manifested many years after service. According to VA treatment records, the onset of degenerative joint disease was in 2007, over 20 years after service discharge, and that the Veteran did not at that time allege the arthritis was related to service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). The Board observes that the Veteran's available VA treatment records indicate that the Veteran did not report a history of in-service injury or onset of back or neck disorder symptoms during service. The initial statements regarding the 1981 motor vehicle accident, made years after service separation to VA physicians in 1991 during the course of treatment, are afforded probative weight. Such statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. At the time of the VA compensation claim in January 2009, the Veteran contended that his back and neck symptoms began in service; however, the earlier and more probative history that he gave for treatment purposes in 199 reflects that the Veteran only reported a history of a head injury due to the 1981 motor vehicle accident, without reporting any back, neck, knee, or shoulder symptoms in service or since service. With regard to the statements of the Veteran attesting that he had a history of back, neck, knee, and shoulder symptoms since his service, the Board finds that these recent assertions of the Veteran made for compensation purposes are not credible because the recent assertions are inconsistent with, and outweighed by, the evidence showing an absence of complaints or treatment for after service, the Veteran's own histories made for treatment purposes prior to filing his 2009 claim for VA compensation, and the Veteran's own reported histories when seeking treatment in the intervening years. See Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005). Prior to the 2009 claim for benefits, it is significant that the Veteran did not make any assertions of chronic back or neck injuries or symptoms in service or continuous symptoms since service, and he did not assert a link between his service and his symptoms or assert an in-service onset at that time. Such evidence weighs against findings of chronic symptoms of a back or neck disorder in service or continuous symptoms since service. Additionally, the competent evidence of record does not indicate a relationship between the Veteran's current back and neck disorders and his military service. For reasons explained below, the February 2013 VA examiner's opinion, that the Veteran's current degenerative changes are not related to service, is also of great probative value. The Board finds that the weight of the lay and medical evidence of record reflects that the Veteran's back and neck disorders had post-service onset and are not related to the Veteran's active service; according to the VA examiner, the Veteran's degenerative joint disease of the neck and degenerative disc disease of the back are age-related. Medical evidence is not limited to that which is provided by doctors. Cox v. Nicholson, 20 Vet. App. 563 (2007). However, the probative value of a medical opinion is also based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. See Sklar v. Brown, 5 Vet. App. 140 (1993). Furthermore, the February 2013 VA examination report makes reference to in-service symptomatology, but as discussed earlier this recent history of symptoms in service is inconsistent with the more contemporaneous post-service treatment record evidence and the Veteran's own post-service histories for treatment purposes that demonstrate no history of related injury, complaints, or symptoms during service. Similarly, as part of the current appeal, the Veteran did not attempt to provide explanations for why there were no noted symptoms in service or for many years after service. For these reasons, the Board finds that the lay and medical evidence that is of record weighs against the claims for service connection for back and neck disorders. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application, and the claims must be denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for Knee and Shoulder Disorders The Veteran asserts that he is entitled to service connection for residuals of a knee injury and a shoulder disorder. In the Notice of Disagreement and VA Form 9, the Veteran contends that he was injured in a 1981 motor vehicle accident and, thus, should be service connected. The record shows that the Veteran has not been diagnosed with degenerative changes (arthritis) of the knee or shoulder; thus, the provisions of 38 C.F.R. § 3.303(b) do not apply. See Walker, supra. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran did not sustain a disease or injury of the knee or shoulder during service, and did not have symptoms of a knee or shoulder disorder in service. As previously mentioned, the Veteran does not allege, and a review of his official military documentation contained in his claims file does not otherwise indicate, that he engaged in combat against enemy forces as contemplated by VA regulations. In this case, although complete service treatment records are not available, post-service treatment records do not show any complaints, treatment, or diagnoses related to a knee injury or shoulder disorder. See 38 C.F.R. § 3.303(a). The Board also finds that the weight of the evidence demonstrates that the Veteran does not currently have a disability of either knee or shoulder. The evidence demonstrates that after service the Veteran did not experience symptoms of knee or shoulder disorder. The Veteran is competent to report certain symptoms related his claimed disabilities; however, the Board finds that his assertions of current disabilities are not credible. The Veteran has not made any complaints, nor sought treatment, related to his alleged knee or shoulder disorders since service separation in 1987. The Veteran also did not report a history of in-service complaints or treatment for a knee or shoulder disorder when he sought treatment in 1991. Significantly, as previously discussed, during the course of treatment in 1991, the Veteran reported a history of a motorcycle accident in 1981, but the Veteran did not make any assertions of a knee or shoulder in-service injury or current disorder at that time. He did not claim his knee and shoulder were related to service until he filed his claim for VA compensation benefits in 2009. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the appellant's statements, it may consider whether self-interest may be a factor in making such statements); see also Cartright, 2 Vet. App. at 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Veteran's more recent contentions, made in connection with the 2009 claim for VA compensation benefits, regarding having a knee and shoulder disorder are not credible because his report is inconsistent with the absence of complaints, treatment, or diagnoses after service, and the Veteran's own histories made for treatment purposes prior to filing a claim for VA compensation. The evidence shows that he did not report or seek treatment for the claimed knee and shoulder disorder following service. Until he filed the claim for VA compensation, the Veteran did not assert an association or make any complaints related to his knee and shoulder disorder or report an in-service injury or symptoms of either knee or shoulder. The Board notes that the Veteran sought treatment in 1991 for unrelated disorders (i.e., depression). It is significant that during treatment he reported having a head injury due to a 1981 motor vehicle accident, but did not make any assertions of knee or shoulder injury in service or symptoms or complaints of either knee or shoulder since service. Lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. For these reasons, the Board finds that the Veteran's recent statements for compensation purposes, alleging an in-service injuries to the knee and shoulder, are outweighed by the other, more contemporaneous lay and medical evidence of record, and are not credible. See Caluza at 511 (1995); see also Cromer, supra. The Board also finds that the weight of the evidence demonstrates that the Veteran does not have a knee or shoulder disability. The February 2013 VA examination report indicates that physical evaluation and x-rays of the Veteran's knee and shoulder demonstrate that he does not currently have a knee or shoulder disability, including arthritis. According to the VA examiner, the Veteran does not currently have and did not ever have a knee disability or shoulder disability. Thus, the weight of the evidence demonstrates no current disabilities. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability"). For these reasons, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran has a knee or shoulder disability; therefore, the claims for service connection of these disabilities must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a back disorder is denied. Service connection for a knee disorder is denied. Service connection for a neck disorder is denied. Service connection for a shoulder disorder is denied. REMAND VA has a duty to assist the Veteran in the development of the claim of service connection for memory loss. This duty includes assisting the Veteran in the procurement pertinent records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran has not been provided with a VA examination in order to address whether he has memory loss or other residuals of a head injury related to his active military service. There is sufficient evidence in this case to require a VA examination and medical opinion on the issue of service connection for memory loss. The Veteran contends that he currently has a disability manifested by memory loss. The Veteran contends that his current disability may be associated with an in-service head injury in 1981 as a result of a motor vehicle accident. There is insufficient evidence to decide the case because the medical evidence is unclear whether the Veteran currently has any residuals of that head injury, including his claimed memory loss, and whether such residuals are causally or etiologically related to the Veteran's military service. VA adjudicators may consider only independent medical evidence to support their findings; they may not rely on their own unsubstantiated medical conclusions. If the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, the Board finds that the Veteran should be afforded a VA examination. See 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4) (VA has an affirmative duty to obtain an examination of the claimant at VA health-care facilities if the evidence of record does not contain adequate evidence to decide a claim). VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA records are considered to be constructively of record and VA is charged with knowledge of their contents. 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). To the extent that there are any VA medical records related to the Veteran's claim for memory loss, such records should be obtained and associated with his claims file. Accordingly, the issue of service connection for memory loss is REMANDED for the following action: 1. Associate with the claims file the Veteran's complete VA treatment records from the Waco, Texas, Medical Center and all associated clinics, as well as any other VA facility identified by the Veteran or in the record, for the period since January 2009. 2. Schedule the Veteran for a VA examination in order to assist in determining the current nature and likely etiology of any residuals of a head injury, to include memory loss. Based on the examination and review of the record, the examiner is requested to provide the following opinion: Is it at least as likely as not (i.e., whether there is at least a 50 percent probability) that the Veteran has residuals of head injury, to include memory loss, related to any active duty service? In answering this question, please specifically discuss the motor vehicle accident and related head injury in service in 1981. A rationale for all opinions expressed should be provided. The relevant documents in the claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. 3. Readjudicate the claim of service connection for memory loss. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran is advised of the consequences for failure to report for a scheduled examination. According to 38 C.F.R. § 3.655(b), when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. The purpose of this remand is to provide assistance by further developing the record. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The Veteran 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 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. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs