Citation Nr: 1325969
Decision Date: 08/15/13	Archive Date: 09/24/13

DOCKET NO. 11-25 765   )       DATE AUG 15 2013

On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska

THE ISSUE 

Entitlement to service connection for a left knee disability.

REPRESENTATION 

Appellant represented by:   Calvin Hansen, Attorney

ATTORNEY FOR THE BOARD

Shamil Patel, Counsel

INTRODUCTION

The Veteran served on active duty from January 1989 to January 1994.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which denied service connection for a left knee disability.

The Veteran's Virtual VA file has also been reviewed as part of his appeal.
The Board has determined that additional development is necessary and the appeal is therefore REMANDED to the RO. VA will notify the Veteran if further action is required.

REMAND

Although the RO unsuccessfully attempted to secure the Veteran's service medical records, they have not been obtained. Given the Veteran's assertions regarding the alleged in-service injuries, the RO will be directed to attempt to secure the Veteran's SERVICE PERSONNEL RECORDS; provide a VA medical examination, and conducted other appropriate development.

Accordingly, the case is REMANDED for the following action:

1.	Obtain the Veteran's service PERSONNEL records;

2.	Attempt to obtain the Veteran's SERVICE
TREATMENT RECORDS by direct contact with
Marine Corps Reserve Support Center, 10905 El
Monte, Overland Park, KS 66211-1408;

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3. After conducting the efforts in paragraphs 1 and 2, schedule the Veteran for a VA medical examination, TO BE CONDUCTED BY A QUALIFIED PHYSICIAN, to determine if he has a left knee disorder that was incurred in or as a result of active service. The following considerations will govern the examination:

a.	The claims folder, and a copy of this
remand, will be provided to the examiner for
review in conjunction with the examination.

b.	The examiner must respond to the inquiry:
Based on your knowledge of medical science,
your review of the record, and any
information gained from the Veteran during
interview or clinical studies, DOES THE
VETERAN HAVE A LEFT KNEE
DISORDER THAT WAS CAUSED BY ANY
IN-SERVICE INCIDENT?

c.	The examiner's attention is called to the
following:

The Veteran alleges that he injured his left knee on an obstacle course in service, DURING BASIC TRAINING; and AGAIN IN AN IN-SERVICE WATER SKIING ACCIDENT (although the Veteran's mother has alleged that the Veteran sustained two accidents in basic training and one separate accident in service after basic training);.

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THE EXAMINER IS ADVISED THAT AT THE TIME OF THIS WRITING, THE VETERAN'S SERVICE MEDICAL TREATING RECORDS MAY NOT HAVE BEEN OBTAINED. THE MERE FACT THAT SUCH RECORDS MAY NOT HAVE BEEN OBTAINED IS NOT, IN AND OF ITSELF, DISPOSITIVE TO THIS INQUIRY.

The Veteran alleges that while in basic training, he injured his left knee while training on an obstacle course. He has submitted statements from service members who allege that they recall him using crutches for an extended period of time after the incident. His mother alleges that the Veteran then reported to her that he injured his left knee twice in basic training. The Veteran alleges that notwithstanding these injuries, he completed basic training (at this writing, there is nothing in the claims folder indicating whether the Veteran was compelled to restart training due to his alleged basic training injuries);

In January 1994, the Veteran completed a four-year regular enlistment with the U.S. Marine Corps when he was approximately 24 years old;

The Veteran's claim of service connection for a left knee disorder was received in November 2010, approximately 16 years after his discharge from active service and when he was approximately 38 years of age;

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The Veteran apparently worked post service in the construction industry; as a cabinet maker; and as a pet store manager;

In April 2004, the Veteran advised VA medical care providers that at some point after service, he was involved in a motorcycle accident, where he injured his left knee, left foot, left hand and sustained "cracked ribs;"

In August 2004, the Veteran advised VA medical care providers that at some point shortly before treatment, he had twisted his left knee on a rock three times.

d.	The examiner is specifically advised that
although the Veteran has reported he had injured
his left knee by a hyperextension injury and
surgery in 1985 (PRIOR TO MILITARY
SERVICE), in the absence of his service entrance
physical examination noting the pre-existence of
a left knee disorder, the VETERAN IS
PRESUMED TO HAVE BEEN IN SOUND
PHYSICAL CONDITION AT THE TIME HE
WAS ACCEPTED FOR ACTIVE MILITARY
DUTY.

e.	Reiterating the inquiry: Based on your
knowledge of medical science, your review of
the record, and any information gained from
the Veteran during interview or clinical
studies, DOES THE VETERAN HAVE A
LEFT KNEE DISORDER THAT WAS

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CAUSED BY ANY IN-SERVICE INCIDENT?

4. After completion of the remand directives, the RO must ensure that all appropriate development has been conducted, to include if necessary any clarification from the medical examiners.

5. The RO will then readjudicate the claim. If the claim continues to be denied, issue the Veteran a Supplemental Statement of the Case and return the appeal to the Board.

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).


Vito A. Clementi 
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).

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