Citation Nr: 1323537 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 11-03 558 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a right knee disability. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1964 to December 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Service connection for right knee osteoarthritis was denied therein. In May 2011, the Veteran testified regarding this matter at a hearing before the undersigned Veterans Law Judge. It now is remanded to the RO via the Appeals Management Center (AMC), in Washington, DC, based on review of his claims file and Virtual VA "eFolder." REMAND Although the Board sincerely regrets the delay of a remand, adjudication of this matter cannot be undertaken as of yet. More development is needed to ensure the Veteran is afforded every possible consideration. VA indeed has a duty to assist him in substantiating the benefit sought. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). I. Records Reasonable efforts must be made by VA to assist in the procurement of relevant records. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c) (2012). Reasonable efforts with respect to records in Federal custody consist of making as many requests as are necessary to obtain them unless it is concluded that they do not exist or that further requests would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). The claimant shall be notified if requested records cannot be or are not obtained. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). The Veteran's service treatment records have been obtained by VA. They document that he sustained a right knee sprain in March 1968 but otherwise are negative. Yet upon VA medical examination in November 2010, the Veteran reported that he reinjured his right knee during service in 1972. He indicated at the hearing that he received treatment for this reinjury at a military hospital in San Diego, California, and that he thought it occurred in 1972 but that it definitely occurred between 1970 and 1975. There is no indication that in-service hospital records regarding the Veteran's right knee have been requested by VA. Requests for them must be made notwithstanding that his service treatment records already have been obtained. Indeed, service treatment records do not include inpatient treatment records (clinicals). VA Adjudication Procedure Manual M21-1MR, Part III, Subpart iii, Chapter 2, Section A.1.a. The Veteran must be notified if the requests are unsuccessful. VA has obtained the Veteran's VA treatment records dated into January 2011. They document his ongoing treatment for a variety of health problems to include regarding his right knee. It thus is inferred that there may be pertinent VA treatment records dated from January 2011 to present. However, there is no indication that any such records have been requested by VA. Requests for them must be made. The Board indeed has constructive notice of VA treatment records. Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran must be notified if the requests are unsuccessful. II. Medical Opinion If VA provides a medical opinion for a service connection claim, the duty to assist mandates that it be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). An opinion is adequate when it allows the Board to perform a fully informed evaluation. Id. It therefore must be based upon consideration of the Veteran's entire medical history. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Ardison v. Brown, 6 Vet. App. 405 (1994). That helps ensure that the factual premises underlying a medical opinion will be accurate, which is required. Reonal v. Brown, 5 Vet. App. 458 (1993). The rationale for a medical opinion also must be fully articulated. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl, 21 Vet. App. at 120. The November 2010 VA medical examination included the examining physician's opinion that the Veteran's right knee disability, diagnosed as severe osteoarthritis, is less likely as not related to his service and more likely related to aging. Noted in this regard was that his right knee sprains during service were mild. The accuracy of this factual premise underlying the opinion is unclear at this time given the potentially outstanding in-service hospital records. Further, it follows from these records that the opinion may not have been based on consideration of the Veteran's entire medical history. The rationale for it finally was not fully articulated. There was no explanation of why the Veteran's right knee disability is related to aging instead of his service. Such an explanation is particularly needed here. Aging would be expected to affect both knees the same. The Veteran has both right and left knee disabilities, but the right is more severe than the left. For each of these reasons, arrangements must be made for another VA examination complete with medical opinion. Given the above, a REMAND is directed for the following: 1. Make as many requests as necessary to all appropriate sources for in-service hospital records from San Diego, California, dated between 1970 and 1975, with particular emphasis on 1972, regarding the Veteran's right knee. Associate all records received with the file or "eFolder." 2. Make as many requests as necessary to obtain VA treatment records regarding the Veteran dated from January 2011 to present. Associate all records received with the claims file or "eFolder." 3. If any requested records ultimately are not received or are received but are incomplete, notify the Veteran. Document the claims file or Virtual VA "eFolder" as appropriate in this regard. 4. After completing the above, arrange for the Veteran to undergo a VA medical examination regarding his right knee. The examiner shall be a physician, preferably an orthopedic physician. The claims file and pertinent "eFolder" documents shall be reviewed by the examiner. The examiner also shall interview the Veteran. All tests or studies deemed necessary next shall be performed. The examiner finally shall opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's right knee disability: (a) is related to his March 1968 right knee injury and/or subsequent right knee injury during service or (b) is otherwise related to his service. A clear and complete rationale shall be provided for the opinion. This includes a discussion of pertinent medical principles, with a citation for or the attachment of any medical literature referenced, as well as the pertinent medical and lay evidence. The previous VA medical opinion, in particular how the Veteran's right knee disability is more likely related to aging given that it is more severe than his left knee disability, thus shall be addressed. His assertion of right knee pain ever since his separation from service thus also shall be addressed. If an opinion cannot be provided without resort to mere speculation, the rationale specifically shall discuss whether this is because more information is needed, information that cannot be obtained is needed, the limits of current medical knowledge have been exhausted, there are multiple possible etiologies with none more likely than not, or some other reason. A report documenting the above actions shall be placed in the claims file or "eFolder." 5. Lastly, readjudicate the Veteran's entitlement to service connection for a right knee disability. If this benefit is not granted, furnish him with a supplemental statement of the case (SSOC). A copy of the SSOC shall be placed in the claims file or Virtual VA "eFolder." Allow the Veteran an opportunity to respond before processing this matter for return to the Board. No action is required of the Veteran until he is notified by the RO or AMC. However, he is advised that failure to report for any scheduled examination may result in denial of the benefit sought. 38 C.F.R. § 3.655 (2012). He also is advised that he has the right to submit additional evidence and argument regarding this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This matter must be afforded prompt treatment. Indeed, all matters remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C.A. § 7252 (West 2002). This remand is a preliminary order and does not constitute a decision on the merits by the Board. 38 C.F.R. § 20.1100(b) (2012).