Citation Nr: 1319702 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 07-17 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from October 1958 to October 1960. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that decision the RO declined to reopen the claims of entitlement to service connection for right and left knee disabilities, claimed as secondary to pes planus. In May 2011, the Veteran testified before the Board at a hearing held at the RO. A copy of the transcript is of record. In August 2011, the Board reopened the claim of entitlement to service connection for a left knee disability, secondary to pes planus. The Board then remanded the underlying claim for service connection, as well as the issue whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability, for further development. This development consisted of sending the Veteran a notification letter meeting the requirements of the Veterans Claims Assistance Act of 2000 (VCAA) with respect to his claim to reopen the issue of entitlement to service connection for a right knee disability, as well as any additional development deemed appropriate. VA issued a corrected VCAA letter in September 2012. Thus, there has been substantial compliance with the Board's August 2011 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In August 2011, the Board determined that the Veteran had initiated an appeal with respect to the issue of entitlement to an effective date prior to April 27, 2006 for the assignment of a compensable evaluation for his bilateral pes planus, and remanded the issue for the issuance of a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The RO was instructed that if and only if the Veteran perfected an appeal of this issue by filing a timely substantive appeal, the matter was to be returned to the Board. Id. As a timely substantive appeal is not filed in the Veteran's paper claims or Virtual VA folders, this matter has not been perfected for appellate review and will not be further addressed. 38 C.F.R. § 20.200 (2012). In addition to the paper claims file, there is a Virtual VA electronic claims file associated with this appeal. The electronic file contains additional relevant treatment records pertaining to this appeal which have been reviewed. 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 appellant if further action is required. REMAND The Veteran claims entitlement to service connection for right and left knee disabilities on both a direct basis, and secondary to pes planus. In terms of his left knee disability and direct service connection, the Veteran asserts that he injured his left knee on active duty in a fall. He further asserts that he was seen at a VA hospital and diagnosed as having a distal lateral fibular condition. His service treatment records do not show complaints or treatment for a left knee condition. The appellant, however, submitted a September 1975 statement from a fellow serviceman who asserted that he recalled that the appellant had been seen at a station hospital for a knee disability and wore a cast on his leg for several months. In May 1975, the Veteran informed VA that he was a "bed patient" at a VA hospital in Dallas for his left leg, and he suggested that VA obtain the hospital records. Along these lines, there are a number of notations on post service medical records that note that the Veteran was status post internally fixed tibial plateau, left knee, and that he underwent an open reduction and internal fixation in the 1970s. It does not appear that these records have been obtained. VA has a duty to make reasonable efforts to assist claimants in obtaining relevant evidence that the claimant has sufficiently identified. 38 U.S.C.A. § 5103A(b)(c); 38 C.F.R. § 3.159(c). Whenever VA attempts to obtain records from a Federal department or agency, the efforts shall continue until the record are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain the records would be futile. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c). Accordingly, this case must be remanded so that the identified records noted above can be obtained. See also Bell v. Derwinski, 2 Vet. App. 611 (1992). Also on file is a February 2006 VA social work service general note stating that the Veteran was receiving monthly Social Security benefits. The record does not specify what type of Social Security benefits the Veteran was in receipt of, but he did report on an Income-Net Worth and Employment Statement (VA Form 21-527) in September 1976 that he stopped working in 1975 due to a knee injury. Moreover, on file is a letter from the Social Security Administration to the Veteran informing him that his supplemental income payment would be stopped due to his receipt of Social Security benefits. For these reasons, the Veteran's Social Security records are potentially relevant and should be obtained from the Social Security Administration on remand. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). A March 2013 Supplemental Statement of the Case shows that the Veteran underwent a VA examination in November 2012. The examination report on file dated in November 2012 appears, however, to be incomplete since out of the 19 questions asked on the examination report, only one question is answered (question#1). Thus, the RO/AMC should ensure that the complete examination report from the November 2012 examination is obtained and associated with the Veteran's claims file. Lastly, the evidence shows that the Veteran continues to receive VA outpatient treatment at the VA North Texas Health Care System. Accordingly, a request should be made to obtain all pertinent VA treatment records from May 2012 to present. 38 U.S.C.A. § 5103(c); 38 C.F.R. § 3.159. Based on the foregoing, 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. Obtain records from the Dallas, VA Medical Center that pertain to surgery and treatment for the Veteran's left knee in the 1970s. Also, updated VA treatment records from the North Texas VA health care system dating since May 2012 should be obtained, to the extent such records are relevant to the present appeal and not currently of record. All records that are obtained should be reviewed. If the RO/AMC cannot locate any Federal records requested herein, it 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. Contact the Social Security Administration and obtain and associate with the claims file copies of the Veteran's records regarding Social Security disability benefits, including any decisions (favorable or unfavorable) and the medical records upon which the decisions were based. The Board acknowledges that the Veteran 77 years of age and that any current benefits are most likely based on "old age," however, if the appellant was in receipt of Social Security disability benefits due to a knee disorder at any time, those records should be secured. All records/responses received should be associated with the claims file. If the RO/AMC cannot locate any Federal records requested herein, it 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. 3. Then, after undertaking any additional development deemed appropriate, to include the conduct of any necessary examination, readjudicate the issues on the basis of the additional evidence. If any benefit sought is not granted, furnish the Veteran and his representative a Supplemental Statement of the Case and afford them a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant and his representative have 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). _________________________________________________ DEREK R. BROWN 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).