Citation Nr: 1324304 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 11-05 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a left elbow disorder. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from September 1978 to May 1986. Further, the record reflects he had additional service in the National Guard/Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which, in pertinent part, denied the current appellate claims. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in May 2011. A transcript of this hearing has been associated with the Veteran's VA claims folder. For the reasons stated below, further development is required in this case. Accordingly, 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 VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this case, further development is required in order to comply with the duty to assist. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Active service includes any period of active duty for training (ACDUTRA) during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty training includes duty, other than full-time duty, prescribed for the Reserves. 38 U.S.C.A. § 101(23)(A). Reserves includes the National Guard. 38 U.S.C.A. § 101(26), (27). Initially, the Board observes that the Veteran indicated at his May 2011 Board hearing that there were outstanding medical records from the Social Security Administration (SSA) relevant to both his left knee and left elbow claims. The United States Court of Appeals for Veterans Claims (Court) has long held that the duty to assist includes requesting information and records from the SSA which were relied upon in any disability determination. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996) (VA is required to obtain evidence from the Social Security Administration, including decisions by the administrative law judge, and give the evidence appropriate consideration and weight); Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992); Masors v. Derwinski, 2 Vet. App. 181, 187-88 (1992); Collier v. Derwinski, 1 Vet. App. 413, 417 (1991); see also 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2). Consequently, a remand is required in order to obtain these records. The Board also notes that the Veteran indicated recent treatment for his left knee through the VA at his May 2011 hearing, to include receiving a cane the month before at the Nashville VA medical facility. The Court has held that VA records which are in existence are constructively of record and the failure of the RO or the Board to consider any such pertinent records might constitute clear and unmistakable error, even though such evidence was not actually in the record assembled for appellate review. Bell v. Derwinski, 2 Vet. App. 611 (1992). Relevant statutory and regulatory provisions also emphasize the importance of obtaining pertinent VA records as part of the duty to assist. See 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2). Therefore, a remand is also required in order to obtain any such VA records. The Board further notes that the Veteran testified he injured both his left knee and elbow in a sports game in 1980, while on active duty; that he was treated for his knee at that time; and he has had recurrent symptoms of both joints since that injury. He has also submitted lay statements from his former spouse and child attesting to his having knee and elbow problems since his separation from service. Further, service treatment records dated in May 1981 reflect treatment for a pulled muscle of the left knee due to an injury that occurred while playing ball. Although there is no reference to a left elbow injury in these records, the Veteran is competent, as a lay person, to observe that such an injury also occurred at that time. Nevertheless, no left knee and/or left elbow problems were noted subsequent to May 1981, and his upper and lower extremities were clinically evaluated as normal on subsequent service examinations conducted in March 1982 and December 1985. In view of the foregoing, the Board finds that a competent medical examination and opinion is necessary to determine the current nature and etiology of the claims left knee and left elbow disabilities. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). As an additional matter, the Board notes that it appears the service records for the Veteran's National Guard service may be incomplete. Specifically, records were requested for the period from November 1976 through February 1977, and the Veteran was informed by correspondence dated in August 2010 that VA was unable to obtain all of these records. Granted, such records were associated with the claims folder in December 2010 from the State Army National Guard Archived Records section. However, it is not entirely clear that these are all the records that are in existence for this period. Further, a response was received in April 2011 from the Veteran's National Guard unit that no records were available as units no longer keep such records, that they were all centrally located at the Raymond Road Armory, and provided the address and point of contact for that facility. The Board notes that this is a different address than the one for the Archived Records section. The Board acknowledges that the Veteran testified at his hearing that the injuries that resulted in his current left knee and left elbow disabilities occurred after this period of National Guard service. Nevertheless, as a remand is already required in this case, the Board finds that a request should be made to the Raymond Road Armory facility for any such records they have in their possession regarding this service. See Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009) (Discussing the importance of obtaining a veteran's complete service treatment records). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain the names and addresses of all medical care providers who have treated the Veteran for his left knee and left elbow since March 2005. After securing any necessary release, the AMC/RO should obtain those records not on file. Even if the Veteran does not respond to this request, the AMC/RO should follow-up on his testimony of recent treatment for these disabilities through the VA, to specifically include the VA medical facility in Nashville, Tennessee. 2. The AMC/RO should obtain from the Social Security Administration the records pertinent to the Veteran's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 3. The AMC/RO should make another attempt to secure the Veteran's service treatment records for his National Guard service through official channels to include a request for such records at the Raymond Road Armory facility identified by his unit in April 2011. 4. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to evaluate the current nature and etiology of his left knee and left elbow. The claims folder should be made available to the examiner. For any disability of the left knee and/or left elbow found to be present, the examiner must express an opinion as to whether it is at least as likely as not that any such disability was incurred in or otherwise the result of active service, to include the injury sustained while playing ball in May 1981. In responding to this inquiry, the examiner must acknowledge and discuss the competent report offered by the Veteran and his former spouse (see statement received in June 2011) as to the onset and recurrence of left knee and left elbow problems in and since service. All findings and conclusions, accompanied by a rationale, should be set forth in a legible report. 5. After completing any additional development deemed necessary, the AMC/RO should readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the January 2011 SOC, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). _________________________________________________ STEVEN D. REISS 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).