Citation Nr: 1327801 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 10-15 286 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to April 25, 2012, and in excess of 50 percent thereafter. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The March 2009 rating decision granted service connection for PTSD and assigned an initial 10 percent rating, effective July 29, 2008. Thereafter, the Veteran disagreed with the initially assigned rating. In a February 2010 Decision Review Officer (DRO) decision, an initial rating of 30 percent was granted, effective July 29, 2008. Then, an October 2012 DRO decision assigned a 50 percent rating, effective April 25, 2012. However, as these ratings are still less than the maximum benefit available, the appeal is still pending. AB v. Brown, 6 Vet. App. 35, 38 (1993). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board's review of the record indicates that a remand is necessary to allow for the acquisition of outstanding treatment records. First, the Board notes that the Veteran seeks treatment within the Birmingham, Alabama VA Medical Center (VAMC). However, the most recent VA treatment note is dated in December 2009. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Thus, all VA treatment records from the Birmingham VAMC and all associated outpatient clinics dated from December 2009 to the present should be added to the claims file. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Additionally, the VA treatment notes of record reflect that the Veteran has continued to receive mental health treatment at the Birmingham Vet Center. The only Vet Center records in the claims file are a treatment summary for the period from July 2004 to March 2005. Therefore, all outstanding Vet Center records dated from March 2005 to the present should be associated with the claims file. See id. Moreover, with regard to the Veteran's right knee claim, the record reflects that the Veteran has a history of right knee complaints in service and had a right knee arthroscopy in or around 1995. Private treatment records indicate that the surgery occurred prior to October 1998. In his April 2010 VA Form 9, the Veteran identified right knee treatment with Dr. Denny in the early 1970s, Dr Bradley in the early 1980s, Drs. Slappey, Falkner, and Morris from 1985 to 1995, and then Dr. Goldstein to the present. Private treatment records show that Dr. Goldstein performed the right knee arthroscopy. However, none of the private treatment records are from any of these physicians. The first mention of them is in the Veteran's April 2010 VA Form 9. Consequently, the Board finds that a remand is also necessary so that the Veteran may be asked to provide these records or authorize VA to obtain them on his behalf. Finally, the Board observes that the Veteran had complaints of knee symptoms in service and a right knee arthroscopy in approximately 1995. However, there is no evidence of record that the Veteran has a current disability beyond his statement to that effect. Treatment notes contain no diagnosis or symptoms with regard to the right knee, and no VA examination has been performed. VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159; See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran's lay statements in this case are sufficient to trigger the need for a VA examination which is a low threshold. Therefore, the Veteran should be provided a VA examination to assess the existence and etiology of any right knee disability. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records dated from December 2009 to the present from the Birmingham VAMC and all associated outpatient clinics. All requests and responses, positive and negative, must be documented in the claims file. 2. Obtain all records from the Birmingham Vet Center dated from March 2005 to the present. All requests and responses, positive and negative, must be documented in the claims file. 3. Request that the Veteran complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, for all private treatment records related to his right knee, to include the records of Dr. Denny, Dr Bradley, Drs. Slappey, Falkner, and Morris, and Dr. Goldstein. The Veteran may also submit these records directly to VA. All requests and responses, positive and negative, must be documented in the claims file. Two attempts must be made to obtain any identified private records, unless the first attempt reveals that further attempts would be futile. If records are identified but not obtained, the Veteran must be informed of that fact, informed what steps were taken to obtain them, and informed that the claim will be adjudicated without the records but that if he obtains and submits them at a later date the claim may be readjudicated. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505; 126 Stat. 1165, 1191-93. 4. Schedule the Veteran for a VA examination to assess the existence and etiology of the right knee disability. The claims file must be available for review, and the examination report must reflect that review of the claims file occurred. All pertinent symptomatology and findings must be reported in detail. The examiner must record all pertinent medical complaints, symptoms, and clinical findings, and must review the results of any testing prior to completion of the report. Upon review of record and examination of the Veteran, the examiner should address the following: a. Identify all diagnoses appropriate to the Veteran's right knee symptoms. If no diagnosable disorder is manifest, the examiner should so state. b. Is it at least as likely as not (i.e. a 50 percent probability or more) that any diagnosed right knee disability is a result of military service? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A complete rationale for any opinion offered must be provided. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for any VA examination without good cause may include denial of one or more of his claim. See 38 C.F.R. §§ 3.158, 3.655 (2012). 5. After completing the above actions, and any other development deemed necessary, readjudicate the issues on appeal. If the benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).