Citation Nr: 1316694 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 09-37 853 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased evaluation for a ligament strain of the left knee, currently evaluated as noncompensably disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD McBrine, M., Counsel INTRODUCTION The Veteran served on active duty from November 1973 to November 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claims of entitlement to an increased for his service connected left knee disability. The Veteran was originally scheduled for a hearing before a Veterans Law Judge at the RO, however, he failed to report for that hearing. 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 Regretfully, the Board has determined that further development is warranted in this case before a final adjudication may be made. Initially, the Board points out that a December 2011 letter from the Veteran's representative stated that there were outstanding treatment records pertinent to the Veteran's claim at the Tucson VA medical center. The Board emphasizes that 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 a 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). As such, this issue must be remanded to obtain any relevant treatment records. In addition, the Board notes that the Veteran was last examined for this disability in April 2008, 5 years ago. Further, the Board finds that examination was not ideal, as it appears the physician at that time was unable to get a completely accurate picture of the Veteran's current level of disability. As such, the Board finds that a remand is warranted in order that the Veteran may be provided with another VA examination that more accurately represents his current level of severity. Nevertheless, the Board also cautions the Veteran concerning his own responsibility in these matters. The Court has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran's duty to cooperate with VA includes reporting for and cooperating during his VA examination. Accordingly, the case is REMANDED for the following action: 1. The RO shall contact the Veteran and request that he provide the names and addresses of any health care providers who have recently treated him for any left knee condition since 2008. Contact any identified facility, including the VA facility in Tucson, Arizona, to obtain all of his available treatment records. If these requested records are unavailable, or the search for them otherwise yields negative results and further attempts to obtain these records would be futile, this must be documented in the claims file and the Veteran notified in accordance with 38 C.F.R. § 3.159(c)(2). 2. After completion of the above requested development, and any other development deemed warranted by the record, schedule the Veteran for a VA examination for his left knee disability. The entire claims file, to include a complete copy of this REMAND, must be made available to the examiner, and the examination report should note review of the file. Range of motion testing should be accomplished. A report should be prepared and associated with the Veteran's claims folder. The examiner should specifically note whether the Veteran currently has any degenerative findings in his left knee due to his service connected ligament strain. 3. After completion of the above requested development, and any other development deemed warranted by the record, the RO should adjudicate the claims on appeal in light of all pertinent evidence (to specifically include all that added to the record since the issuance of the last SSOC on the matters on appeal) and legal authority. The RO must provide adequate reasons and bases for its determinations. 4. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC), and afford them the opportunity to provide written or other argument in response thereto before the claims file is returned to the Board for further appellate consideration. 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). _________________________________________________ MICHAEL LANE 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).