Citation Nr: 1325216 Decision Date: 08/08/13 Archive Date: 09/24/13 DOCKET NO. 05-32 463 ) DATE AUG 08 2013 On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1980 to January 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Hartford, Connecticut Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims file is now in the jurisdiction of the Newark, New Jersey RO. In September 2007, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. The case was remanded for development in 2007, 2008, 2011, and January 2013. The Veteran had also appealed a denial of service connection for a low back disability. An April 2013 rating decision granted such benefit. The appeal is being 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 Board's last prior remand (in January 2013) ordered the RO to secure records of the Veteran's treatment by Alfred Greisman, M.D. since approximately 1990. In January 2013, the RO requested the Veteran to complete a VA Form 21-4142, Authorization and Consent to Release Information, for Dr. Greisman. Later that month he returned such completed authorization to the RO. In February 2013 and again in March 2013, the RO sent the authorization with a request for the Veteran's records to Dr. Greisman. Dr. Greisman has not yet responded. An April 2013 decision review officer's (DRO's) note for the file observes that the claim is not ready to rate. The plan [properly] was to advise the Veteran that Dr. Greisman had not responded, afford him the opportunity to secure the records from Dr. Greisman and submit them himself, and then arrange for the Veteran to be examined to secure a medical advisory opinion based on review of a -2- complete record. Instead, that same month another DRO readjudicated and denied the claim (despite the incomplete development of the record), and the case was returned to the Board . Under governing regulation a Veteran has a year from the date of the request to submit evidence sought in connection with a claim for VA benefits. VA's request for an authorization from the Veteran was in January 2013, and he promptly responded. The request to Dr. Greisman (which has not been returned as undeliverable) was in February 2003. Clearly the time for submission had not lapsed, and the readjudication (based on an incomplete record) was at the very least premature. Accordingly, the Board must find that the RO has not meet VA's mandated duty to assist the Veteran. Records of Dr. Greisman's treatment of the Veteran are critical to his claim. He was discharged from service in January 1989. In November 2004 he indicated that when he left the service, he could not run without adverse consequences on the following day. He related that he saw Dr. Greisman in the fall of 1990, and that Dr. Greisman took X-rays and found that the bottom of the Veteran's femur was roughened and was tearing up his cartilage. Records confirming the treatment and reported findings in 1990 would support a continuity theory of substantiating the Veteran's claim.. Accordingly, the case is REMANDED for the following: 1. The RO must secure from orthopedist Alfred Greisman, M.D. of Red Bank, New Jersey the complete clinical records of all evaluations and treatment he has provided to the Veteran (since fall 1990). If another authorization for release of Dr. Greisman's records to VA is necessary, the Veteran must assist in the matter by providing,. Development for the records of treatment Dr. Greisman provided should proceed to its logical conclusion (if, for example, Dr; Greisman's practice has merged with, or has been acquired by, -3- another orthopedic practice, the records should be sought at that source). Any further development suggested by Dr. Greisman's records (e.g. for records of any further evaluations or treatment identified in Dr. Greisman's records)should be completed. If Dr. Greisman continues to not respond to the RO's request, the Veteran should be so advised: advised that ultimately it is his responsibility to ensure that such records are received; and afforded the opportunity to secure and submit them himself. Thereafter, if (and only if) records received from Dr. Greisman show the treatment and findings the Veteran has reported, the RO should arrange for an orthopedic examination of the Veteran to secure a nexus opinion that encompasses the newly available information. 2. When the development requested above is completed, the RO should review the record and readjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case (SSOC), and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. George R. Senyk Veterans Law Judge, Board of Veterans' Appeals -4- 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). -5-