Citation Nr: 1320384 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 09-49 600 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from October 2003 to April 2007. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In his December 2009 substantive appeal (VA Form 9), the Veteran requested a hearing before a Veterans Law Judge. The hearing was scheduled for January 2012, but the Veteran declined to attend. As no further communication from the Veteran with regard to a hearing has been received, the Board considers his request for a hearing to be withdrawn. See 38 C.F.R. §§ 20.702(d), (e); 20.704(d), (e) (2012). 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 Upon a review of the claims folder, the Board determines that a remand is required to allow for further development of the claim. Specifically, the Board finds that any outstanding VA treatment records should be obtained and a VA examination scheduled. The Veteran contends that he has a current left knee disability that resulted from an injury in service. The Board notes that the in-service injury is documented in November 2006 service treatment records. The Board first notes that the record indicates that the Veteran receives treatment within the El Paso VA Medical Center (VAMC), but the most recent VA treatment record in the claims file is dated in January 2009. Therefore, all treatment records for the Veteran dated from January 2009 forward from the El Paso VAMC should be added to the claims folder. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). El Paso VAMC records show that the Veteran had sought VA treatment for his left knee since June 2008, at which point he reported chronic knee pain, but no recent injury. An MRI of the left knee from July 2008 showed a possible partial thickness tear of the anterior cruciate ligament. However, a December 2008 VA orthopedic consult reflects a diagnosis of chronic left knee pain with differential diagnoses of chondromalacia, meniscal pathology, and degenerative joint disease. No additional imaging was ordered by the orthopedist, and the Veteran was referred back to his primary care physician. A January 2009 VA primary care note reported a diagnosis of likely partial ACL tear based upon the July 2008 MRI, and there are no VA treatment notes dated after January 2009 of record. The September 2009 VA examination report does not include a diagnosis. The examiner opined that, considering a normal January 2007 MRI, the possible partial ACL tear found in July 2008 was likely a recent lesion and not caused by service. However, from the above evidence it is unclear what, if any, diagnosis is appropriate to the Veteran's left knee symptoms at any time since service. The Veteran's subjective complaint has been left knee pain, but pain alone is not a disability and without a diagnosed or identifiable underlying malady or condition, cannot be service-connected. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). However, the Veteran has offered lay evidence of having left knee pain since the in-service injury. Further, the December 2008 orthopedic note suggested multiple possible diagnoses for the Veteran's left knee, but subsequent treatment notes of record offer no confirmation or denial of these diagnoses. While the September 2009 VA examiner opined that the possible partial ACL tear found in July 2008 was a recent lesion, this opinion does not address whether any other disability of the left knee that may have been present before or after July 2008 was related to the in-service injury or the Veteran's complaints of pain since that injury. In light of the above, and the fact that the most recent medical evidence is almost four years old, the Board finds that the appeal should be remanded so that VA treatment records may be obtained and another VA examination scheduled. Accordingly, the case is REMANDED for the following action: 1. Request all treatment records for the Veteran from the El Paso VAMC and associated outpatient clinics dated from January 2009 forward. All requests and responses, positive and negative, must be documented in the claims file. 2. Schedule the Veteran for a VA orthopedic examination to assess the existence and etiology of any left knee disability. The claims file must be made available to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. All tests or studies necessary to make these determinations must be conducted. Upon a review of the record and examination of the Veteran, the examiner should respond to the following: a. Provide all diagnoses appropriate to the Veteran's left knee symptoms. b. Is it at least as likely as not (i.e. a 50 percent probability or more) that any left knee disability demonstrated at any time since service, even if later resolved, is a result of the Veteran's in-service left knee injury activities or is otherwise a result of his military service? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A complete rationale for any opinion offered must be provided. The examiner must contemplate the Veteran's subjective medical history, including his reports of chronic pain since service, in forming this opinion. 5. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for any VA examination without good cause may include denial of one or more of his claim. See 38 C.F.R. §§ 3.158, 3.655 (2012). 6. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. 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). _________________________________________________ U. R. POWELL 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).