Citation Nr: 1325837 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-18 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a left knee disability. ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from January 1989 to January 1993. He also served in reserve component of the U.S. Army, to include what has been characterized as a period of active duty from June 1985 to March 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The RO, in pertinent part, denied service connection for a left knee disability. For the reasons set forth below, this appeal is being REMANDED to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND Generally speaking, when VA receives a complete or substantially complete application for benefits, it is required to make reasonable efforts to help the claimant obtain evidence necessary to substantiate his claim, to include relevant records from Federal and private sources. 38 U.S.C.A. § 5103A(b), (c) (West 2002); 38 C.F.R. § 3.159(c)(1)-(3) (2012). VA is also required to provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). In the present case, the evidence of record shows that the Veteran submitted a VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs) in September 2011, seeking the RO's assistance in obtaining relevant records of treatment from Kevin D. Frank, M.D. The evidence shows that the RO contacted Dr. Frank's group practice (Mount Carmel Medical Group/Diley Ridge) in January 2012, requesting copies of all relevant treatment records. In response to the RO's request, the practice provided a single-sided, one-page document reflecting that a William G. Buoni, M.D., had ordered x-rays of the Veteran's left knee in January 2010. No records of treatment by Dr. Frank were provided. Nor were any records provided to show if the x-rays ordered in January 2010 were completed, and, if so, what they revealed. In a subsequent letter from the Veteran, dated in March 2012, he continued to assert that Dr. Frank, whom he then identified at his "current family doctor," had treated him for problems with his left knee. Under governing law, as noted above, VA has a duty to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim, to include relevant records from private sources. VA regulation provides that such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. 38 C.F.R. § 3.159(c)(1) (2012). Here, although the RO properly made a request for records of treatment by Dr. Frank, and the custodian responded to that request, no records from Dr. Frank were provided. Under the circumstances, the Board finds that another attempt should be made to obtain those records. Thereafter, if they cannot be procured, the Veteran should be notified so that he can make efforts to obtain them himself. Id. § 3.159(e)(1). With respect to the need for a medical examination and/or opinion, the Board notes that, under applicable law, an examination and/or opinion is deemed "necessary" if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease listed in 38 C.F.R. §§ 3.309, 3.313, 3.316, and 3.317 manifesting during an applicable presumptive period, provided the claimant has the required service or triggering event to qualify for that presumption; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4) (2012). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, the Veteran maintains that he injured his left knee during service in 1993, when a large radiology patient he was working with fell on, or rolled against, his left leg. He says that he was seen in the emergency room (ER); that it was felt that he had a bruise of the knee, or maybe a strain; and that he was given an ace bandage and told to use ice. He says that the injury was not properly documented, perhaps due to the fact that he worked at the hospital where he received treatment, and was familiar with the ER staff. He says that he has had intermittent problems with the knee since that time, with progressive worsening, and private medical reports from Karl W. Kumler, dated in 2010, show that he has been diagnosed with degenerative meniscus. Based on review of the evidence currently available, the Board finds no reason to question the Veteran's credibility with respect to his reported in-service injury, and the symptoms he has experienced in the years since. The record shows that he worked as a radiologic specialist during service, as alleged. As such, it is plausible that he worked with, and knew, the ER staff who treated him, and that no formal record of his care was made. Further, there is no evidence that he was ever examined in connection with his separation from service in January 1993. Accordingly, and because the record also shows that he suffers from a current disability of the left knee (i.e., degenerative meniscus), the Board is persuaded that the requirements for obtaining an examination and opinion have been satisfied. Because no examination or opinion has thus far been procured, further development is required. 38 C.F.R. § 19.9 (2012). For the reasons stated, this case is REMANDED for the following actions: 1. Inasmuch as the prior release has expired, ask the Veteran to provide a new release for relevant records from Dr. Frank, as well as any relevant x-ray reports that may have resulted from Dr. Buoni's January 2010 request for x-rays. Also ask the Veteran to identify, and provide releases for (where necessary), any other care providers who might possesses new or additional evidence pertinent to the issue on appeal. If he provides adequate identifying information, and the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. The new or additional (i.e., non-duplicative) evidence obtained, if any, should be associated with the claims file. If any of the records sought are not available, the claims file should be annotated to reflect that fact, and the Veteran should be notified. 2. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA examination of his left knee. After reviewing the claims file, examining the Veteran, and performing any studies and/or tests deemed necessary (including x-rays, if necessary), the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has a disability of the left knee that it is etiologically related to service. In so doing, the examiner should accept as credible the Veteran's assertions to the effect that he injured his left knee during service in 1993 when a large radiology patient he was working with fell on, or rolled against, his left leg, and that he has had intermittent problems with the knee since that time, with progressive worsening. A complete medical rationale should be provided for all opinions expressed. 3. After conducting any additional development deemed necessary, the claims file should again be reviewed. If the benefit sought remains denied, furnish a supplemental statement of the case (SSOC) to the Veteran, and afford him an opportunity to respond. After the Veteran has been given an opportunity to respond to the SSOC, the claims file should be returned to this Board for further appellate review. No action is required by the Veteran until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This matter 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 (Court) 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). _________________________________________________ MARJORIE A. AUER 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 Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of this appeal. 38 C.F.R. § 20.1100(b) (2012).