Citation Nr: 1328647 Decision Date: 09/09/13 Archive Date: 09/24/13 DOCKET NO. 11-07 034 ) DATE SEP 09 2013 On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1968 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2009 rating decision decided by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. 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 The Veteran seeks service connection for a left knee disability. Although the Veteran has undergone VA examinations in March 2010 and February 2011, another examination is needed to clarify the medical opinions these reports contained. At the March 2010 VA examination, the Veteran related his knee problems to "accumulative and repetitive activities while in service." The examiner noted that his opinion was based on the oral history provided by the Veteran as the claims file was not available for review, and then opined that the Veteran's knee condition was "at least as likely as not due to cumulative injuries caused by or the result of his military service." While the examiner provided an opinion, he did not offer a rationale that would account for the cumulative effects of post service activities, a period of more than 30 years. In the February 2011 report, the examiner stated "there is no evidence that it started in the service," but then went on to offer that it was "less likely than not [that] the problem of the left knee started after service," indicating that the onset of the Veteran's knee condition was in-service. This requires clarification. -2- In addition, VA outpatient treatment records dated in August 2007 show that the Veteran stated that he had undergone left knee meniscal surgery more than 20 years ago. It is unclear if this surgery took place during or after active duty service. Also, the Veteran stated at his March 2011 VA examination that he had suffered from a meniscus tear in service and that his knee was in a cast in 1971. There is no evidence of record regarding the surgical procedure or treatment for a meniscus tear. The Board notes that the RO has determined that most of the Veteran's service treatment records cannot be found. However, as the service treatment records are unavailable, VA has a heightened duty to assist the Veteran in developing his claim. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). While on remand, the RO/AMC should request the Veteran provide information regarding the names of any VA and non-VA medical care providers and dates of treatment surrounding any left knee meniscal surgery. In addition, if the surgery performed on the Veteran's left knee was during active duty service, the VA should seek the in-patient clinical records associated with that procedure. Lastly, relevant ongoing medical records should be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and ask him to identify the names of any past VA and non-VA medical care providers and dates of treatment for his left knee condition, to include information regarding his reported left knee surgery in the 1970s. He is asked to provide, or authorize VA to obtain, any and all non-duplicative treatment records pertaining to his condition. All efforts to obtain any and all identified records must be fully documented in the file, and if the Veteran advises surgery occurred during service, the in-patient clinical records from that surgery should be sought. -3- 2. Obtain relevant VA left knee treatment records dating since September 2010. If no relevant records exist, the claims file should be annotated to reflect such. 3. Notify the Veteran that he may submit additional lay statements from himself as well as from individuals who have first-hand knowledge of his left knee symptoms in service and afterwards. He should be provided an appropriate amount of time to submit this lay evidence. 4. Following completion of the above, the Veteran should be afforded a VA examination for the purpose of clarifying the nature and etiology of any current left knee disability. The claims file must be made available to the examiner for review in connection with the examination. The examiner should be asked to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any current left knee disability had its onset in service. The examiner is asked to discuss the Veteran's contentions regarding the onset of his knee condition and circumstances of his past surgery(ies). A complete rationale for the opinion should be provided. 5. Then, the Veteran's claim should be readjudicated. If the claim remains denied, he and his representative should be provided with a supplemental statement of the case and be given an opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). -4- 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). MICHAEL E. KILCOYNE 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). -5-