Citation Nr: 1321676 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 09-38 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from March 1972 until May 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In March 2013, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record (in the Virtual VA claims file). The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file does not reveal any relevant evidence to this claim that would require RO review prior to adjudication. 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 contends that he injured his right knee while playing football in service, and that he has had chronic knee problems since that time. Service treatment records document that the Veteran complained of a knee injury in May 1975 and that he subsequently received treatment for a right knee strain for the next several months. A January 1971 record documents findings of a normal right knee examination and a diagnosis of an old cartilage lesion with minimal symptomatology - moderate right quadriceps atrophy. The December 1980 separation examination found that the lower extremities were normal. That examiner also noted a history of a May 1975 collateral ligament strain of the right knee, which was treated with a cast and ace wraps, and had resolved. In his report of medical history, the Veteran complained of a "Trick" or locked knee. In March 2008, the Veteran underwent a VA examination. The VA examiner diagnosed the Veteran with status post medial collateral ligament strain by history, status post right knee arthroscopy and degenerative joint disease per X-ray. The VA examiner opined that the Veteran had a collateral ligament strain and treatment in service and that the Veteran had reported a post-service arthroscopy. However, the examiner noted that there were no recent medical records available for review. The VA examiner opined that she could not resolve this issue without resort to mere speculation. The Veteran subsequently submitted copies of private medical records from the Family Doctor Medical Group. In a July 1998 letter, Dr. B. C. Marar reported that the Veteran had injured his knee while working at United Airlines in April 1998. Dr. Marar further reported that the Veteran had also injured his right knee in 1987, while working for the postal service. Dr. Marar diagnosed the Veteran with a symptomatic torn lateral meniscus. An August 1998 MRI report documented findings of: (1) suspect at least degenerative changes of the anterior horn of the lateral meniscus and portions of the medial meniscus, with a possible tear at the periphery of the anterior horn of the lateral meniscus, (2) small effusion and (3) suspect early degenerative changes, particularly the anterior aspect of the lateral compartment. In June 2000, Dr. Marar noted a June 2000 arthroscopic surgery of the right knee. The Board notes that the March 2008 VA examiner did not review the Veteran's private medical records, as VA received those records after the VA examination was performed. The VA examiner had also indicated that she could not provide a medical opinion because there were no post-service medical records to review. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant as to why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The agency or original jurisdiction (AOJ) should arrange for the Veteran to undergo a new VA examination to address the etiology of his current claim. The Board also finds that additional private and VA medical records should be associated with the claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Dr. B. C. Marar, in the July 1998 letter, indicated that the Veteran had received treatment for the right knee by a Dr. Jensen at United Airlines. Dr. Marar also indicated that the Veteran had also injured his right knee in 1987, while with the postal service. Medical records from Dr. Jensen or from the 1987 injury are not associated with the claims file and have never been requested by the AOJ. The AOJ should give the Veteran the opportunity to identify any non-VA healthcare provider who treated him for the right knee and attempt to obtain any identified records. The Board further notes that the AOJ should attempt to obtain private medical records from Kaiser Permanente. The Veteran, in a November 2007 VA Form 21-4142 and in a March 2009 VA medical record, identified Kaiser Permanente as his regular medical care provider, including for his right knee. Although the AOJ adequately attempted to obtain those records, and informed the Veteran of its requests, those records have not been obtained and associated with the claims file. As this matter is being remanded for further development, the AOJ should again offer the Veteran the opportunity to obtain medical records from Kaiser Permanente. Additionally, no VA medical records have been associated with the claims file since March 2009. All VA medical records since that time should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. The AOJ should obtain VA treatment records from the VA Northern California Health Care System (and any other appropriate VA medical center) from March 2009 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, the AOJ should issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, and document that determination in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile. 2. The Veteran should be given an opportunity to identify any non-VA healthcare provider who treated him for the right knee, specifically including from Dr. Jenson at United Airlines, the records surrounding the U.S. Postal Service incident and records from Kaiser Permanent. After securing any necessary authorizations from him, the AOJ should obtain all identified treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, the AOJ should issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, and document that determination in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Once all medical records are associated with the claims file, the AOJ should request a new VA examination to address whether the Veteran currently has a right knee disorder that developed due to his service. Based on examination findings, including any necessary diagnostic studies, as well as a review of the claims file, including treatment records, the Veteran's statements, and a copy of this REMAND, the examiner should render opinions as to the following: a) Does the Veteran currently have a right knee disorder? If so, please identify any/all current diagnosis(es). b) Is it at least as likely as not (50% probability or greater) that any currently diagnosed right knee disorder had its onset during service or was caused by an incident or event that occurred during service? The VA examiner should specifically consider the Veteran's (1) May 1975 football injury, (2) his reports of chronic knee pain since service and (3) his post-service knee injuries. During his March 2013 Board hearing, the Veteran reported (i) that in 1987 he stepped off a curb and his knee gave out (p. 11) and (ii) that in 2000 he stepped down from a forklift and slipped on the pavement (p. 10). There is also a (iii) September 2000 private medical record, by Dr. B.C. Marar, documenting treatment for the right knee following an accidental blow to the area by a car door. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should explain the reason(s) for his/her answers to the questions posed above and reconcile his/her opinions with any on file that may conflict. 4. When the development requested has been completed, the case should again be reviewed by the AOJ on the basis of the additional evidence. If the benefit sought is not granted, the AOJ should furnish the Veteran a supplemental statement of the case and a reasonable opportunity to respond before returning the record to the Board for further review. 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). _________________________________________________ MARJORIE A. AUER 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).