Citation Nr: 1323089 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 09-38 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active military service from June 1971 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In April 2013, the Veteran provided testimony at a Travel Board hearing, conducted in Wilmington, Delaware, before the undersigned Veterans Law Judge, the transcript of which is of record. During the Travel Board hearing, two service treatment records (STRs) were received which were already of record; nonetheless, the Veteran waived review of the submitted evidence by the RO. See 38 C.F.R. § 20.1304(c) (2012). The Board will consider all relevant evidence in the adjudication of the appeal. 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 While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim. See 38 C.F.R. § 19.9 (2012). Initially, the Board considers the motor vehicle accident and related incidents prior to the Veteran's entrance into military service and finds that the presumption of soundness applies. While the January 1971 entrance examination notes right knee pain, it also notes that the Veteran's lower extremities were normal, the lower leg was normal and the right knee x-ray was normal. Thus, the presumption of soundness applies with respect to the Veteran's right knee because no defect, infirmity or disorder was noted at entrance into service. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). In September 2008, the Veteran was afforded a VA examination in connection with his claim for service connection for a right knee disability. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c)(4) (2012). After a thorough review of the claims file as well as an interview with and physical examination of the Veteran, the examiner stated that the Veteran's right knee was normal, noting the right knee x-ray was normal and opining the prior right knee injury had resolved without residuals. However, after reviewing the evidence, the Board notes that magnetic resonance imaging (MRI) testing was not conducted. This is important because the Veteran's in-service right knee injury was a torn right medial meniscus. Additionally, the VA examination notes indicate there is no history of instability or of the knee giving way; however, the issue of the right knee buckling was documented several times in the STRs. In light of above, the Board concludes that the September 2008 VA examination is inadequate for the purposes of this decision, and thus, a remand is necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Finally, as the Veteran's claim is being remanded for other matters, the Board concludes updated VA treatment records should be obtained and associated with the record. The record indicates that the Veteran has received treatment at Volunteers in Medicine of Cape May County and updated treatment records should be obtained. Finally, the record indicates that, in June 2012, VA requested a release form from the Veteran to obtain records from Dr. R.S, also mentioned at the April 2013 Travel Board hearing, and those records should be pursued as well. Accordingly, the case is REMANDED for the following actions: 1. Obtain all relevant VA treatment records from Wilmington, Delaware VA Medical Center and any associated outpatient clinic records, dated since November 2010, and associate them with the claims folder. All efforts to obtain such records must be documented in the record. The Veteran and his representative must be notified of any inability to obtain the requested documents. 2. Obtain the necessary authorization from the Veteran and then attempt to obtain additional records, dated since October 2010, from Volunteers in Medicine of Cape May County and associate them with the claims folder. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 3. Follow-up with the release form that VA sent to the Veteran, dated June 2012, to obtain the necessary authorization from the Veteran and then attempt to obtain additional records from Dr. R.S. and associate them with the claims folder. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 4. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of any right knee disability that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Specifically, the examiner must conduct a MRI test. The entire claims file should be made available for review, to include a complete copy of this remand, and the examination report should reflect that such review occurred. If any right knee disability is diagnosed, opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the right knee disability is related to active service or any incident of 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. The examiner must provide a complete rationale for any opinion expressed, based on the examiners clinical experience, medical expertise, and established medical principles. 5. The RO must 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 a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 6. Finally, after undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. The appellant 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 2002 & Supp. 2013). _________________________________________________ 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 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).