Citation Nr: 1324240	
Decision Date: 07/30/13    Archive Date: 08/07/13

DOCKET NO.  13-16 421	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to service connection for a right knee disorder.


REPRESENTATION

Appellant represented by:	Kentucky Department of Veterans Affairs


ATTORNEY FOR THE BOARD

N. Sonia, Associate Counsel







INTRODUCTION

The Veteran served on active duty from June 1958 to May 1961.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.

The Board must note that in reviewing the case, the Board has not only viewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence.  

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

A remand is necessary in this case so that VA can meet its duty to assist the Veteran in obtaining evidence to substantiate his claim of entitlement to service connection for a right knee disorder.  See 38 U.S.C.A. § 5107A (West 2002); 38 C.F.R. § 3.159(c)(2012).  

There are records identified by the Veteran that are not associated with the claims file.  Efforts to obtain records from a Federal department or agency must continue until the records 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(c)(2) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c)(1)(2012).  Furthermore, it is noted that VA treatment records are considered constructively of record even if not physically in the claims file.  See Bell v. Derwinski, 2 Vet. App. 611, 612 (1992).

In his March 2011 claim for benefits, the Veteran indicated treatment at the Johnson City VA Medical Center (VAMC).  On remand, the RO must make efforts to obtain all records of VA treatment of the Veteran at the Johnson City VAMC.

In a statement in support of his claim from March 2011, the Veteran stated that he has "been treated by [his] family physician . . . over the years."   Subsequently, in his May 2013 substantive appeal, the Veteran stated that his right knee has been "treated for years" by his family physician.  On remand, the RO must make efforts to obtain all outstanding records from Mountain Comprehensive Health Corporation, as well as any other outstanding, pertinent private treatment records identified by the Veteran.

Accordingly, the case is REMANDED for the following action:

1.  Obtain all outstanding treatment records from Johnson City VAMC and associate the records with the claims file.  All efforts to obtain these records should be documented for the claims file, and if they are ultimately deemed to be unobtainable, the appropriate memorandum for the file should be prepared.

2.  Attempt to obtain and associate with the record the necessary authorization from the Veteran for the release to VA of all private clinical and/or hospitalization records pertaining to the right knee disorder, as identified by the Veteran, to include all  records from Mountain Comprehensive Health Corporation.  After obtaining any necessary release forms, all efforts to obtain such records should be fully documented and any records obtained should be associated with the record.  

All facilities must provide a negative response if records are not available and the Veteran and his representative should be informed of such and given the opportunity to submit the requested information as required under 38 U.S.C.A. § 5107A (West 2002); 38 C.F.R. § 3.159(c)(2012).

3.  If additional VA and/or private medical records are obtained that show treatment for the right knee, then send the Veteran's claims file to a VA medical professional for an opinion as to whether it is at least as likely as not that the current condition is related to the in-service injury.

4.  After completion of the requested development as outlined above, readjudicate the issue of entitlement to service connection for a right knee disorder on the merits.  If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto.  Then return the case to the Board, if in order.  

The Veteran 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).

_________________________________________________
MICHELLE L. KANE
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).