Citation Nr: 1316702 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 09-18 886 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Kroes, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to February 1970 and from October 1990 to May 1991. He also reports service in the Reserves. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In November 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND While further delay is regrettable, the Board finds that additional development is required prior to adjudicating the Veteran's claim. See 38 C.F.R. § 19.9 (2012). The Veteran asserts that his initial right knee ailment occurred while driving a truck from New York to Virginia during reserve service on July 4, 1990. Board Hearing Tr. at 4. He testified that his knee has been bothering him ever since. Board Hearing Tr. at 4. In addition, the Veteran indicated that his right knee was agitated by activities during his active service in Operation Desert Storm, such as walking in the desert and driving through rough terrain in military vehicles, which he reports jarred his knee. Board Hearing Tr. at 4; see also March 19, 2008 VA Joints Examination Report. Service records indicate the Veteran worked in transportation for at least some of his military service. The Veteran had pain and swelling of both knees in April 1967, during his first period of active duty. X-rays were within normal limits at that time. In April 1991, during his second period of active duty, the Veteran struck his right knee and was diagnosed with mild patella tendonitis, right knee, and patellofemoral syndrome. X-rays were negative. During multiple VA appointments, the Veteran has reported having right knee and right calf pain that began in 1995. Service records indicate that the Veteran injured his right calf muscle in July 1995, but do not show any complaints about the right knee. Examination of the lower extremities was normal in April 1990, April 1991, April 1996, and August 1998. X-rays of the right knee were normal in May 2005. X-rays taken during a March 2006 VA joints examination reportedly showed right patello-femoral syndrome. After reviewing the evidence of record and examining the Veteran, the examiner diagnosed right patello-femoral syndrome. The examiner did not provide an opinion about the etiology of the disability. During the Veteran's most recent VA joints examination, in March 2008, the examiner determined that there was no specific diagnosis for the right knee, and as a result a medical nexus opinion was not provided. The examiner noted that the patellofemoral syndrome and patellar tendonitis reported in the past were not present on examination and appeared to have resolved. A January 2012 right knee X-ray shows a small amount of degenerative changes in the knee. As a right knee disability is now shown, a medical opinion is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (stipulating that VA's duty to assist veterans, pursuant to the Veterans Claims Assistance Act of 2000, includes the duty to obtain a medical examination and/or opinion when necessary to make a decision on a claim); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that there is a current disability for VA purposes when a claimant has a disability at the time a claim is filed or during the pendency of that claim). In formulating his or her opinion, the examiner is asked to accept as fact that the Veteran had right knee pain after driving during reserve service in July 1990, had right knee pain after walking in the desert and driving military vehicles on desert terrain during his service in Operation Desert Storm, and has had intermittent right knee pain since 1995. Since the Board has determined that a VA examination is necessary in the instant case, the Veteran is hereby informed that 38 C.F.R. § 3.326(a) (2012) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 (2012) address the consequences of a veteran's failure to attend scheduled medical examinations. That regulation provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination scheduled in conjunction with an original claim, the claim will be decided based on the evidence of record. The Board notes that service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training (ACDUTRA) or injury incurred or aggravated while performing inactive duty for training (INACDUTRA). 38 U.S.C.A. §§ 101(24), 106 (West 2002). The Veteran has claimed that he injured his right knee during a period of reserve service; however, records indicating when he served on ACDUTRA and INACDUTRA have not been obtained. On remand, service personnel records from the Veteran's active and reserve service should be obtained. During VA treatment in June 2003, the Veteran indicated that he was applying for disability benefits with the Social Security Administration (SSA). The documents pertaining to this application have not been associated with the claims folder. The possibility that SSA records could contain evidence relevant to the claim cannot be foreclosed absent a review of those records. Quartuccio v. Principi, 16 Vet. App. 183, 188 (2002). On remand, attempts should be made to obtain any relevant records from SSA. Ongoing VA medical records should also be obtained. See 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: 1. Request the Veteran's service personnel records for his active Air Force and Army service and his service in the Reserves. If such records are not available the AOJ should make a finding as to whether further attempts to obtain such records would be futile and notify the Veteran that the records are unavailable. 2. Request all documents pertaining to any application by the Veteran for SSA disability benefits, including the medical records considered in deciding the claim. 3. Obtain relevant treatment records from the VA New York Harbor Healthcare System dating since February 2012. 4. After the above has been accomplished to the extent possible, schedule the Veteran for a VA joints examination to determine the nature of any current right knee disability, and to obtain an opinion as to whether such is possibly related to service. The entire claims file (both the paper file and any electronic portion of the file) must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should address the following: Is it at least as likely as not (50 percent probability or greater) that any current right knee disability arose during service or is otherwise related to service? For purposes of the opinion, the examiner should accept as fact that the Veteran had right knee pain after driving during reserve service in July 1990, had right knee pain after walking in the desert and driving military vehicles on desert terrain during his service in Operation Desert Storm, and has had intermittent right knee pain since 1995. A rationale for all opinions expressed should be provided. 5. After completing these actions, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 6. Then, the record should again be reviewed to include all records added to the file since the last adjudication of this claim. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. 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 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). _________________________________________________ Laura H. Eskenazi Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).