Citation Nr: 1330182 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 11-14 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a low back disability claimed as secondary to right knee disability. REPRESENTATION Appellant represented by: Jodee C. Kayton, Attorney ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran had active service in the U.S. Marine Corps from September 1972 to January 1980. This case comes before 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 St. Petersburg, Florida. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Board finds that additional development is required before the Veteran's claims on appeal are decided. A review of the service treatment records (STRs) shows that during his active service, the Veteran was seen multiple times for complaints of recurrent right knee pain, and that he was diagnosed with chondromalacia patella. A review of the post-service medical evidence shows that the Veteran had his first right knee surgery in 1985, five years after leaving active service. The Veteran had three subsequent right knee surgeries, including a total knee arthroplasty for osteoarthritis in May 2001. Unfortunately, the Veteran's treatment records from Orlando Regional Medical Center prior to 1989 had been destroyed, and there are no other treatment records of record until July 1999. However, according to the Veteran's brief, he continued to receive treatment for his right knee following his 1985 surgery. On VA examination in November 2009, the Veteran reported that he had surgery at Halifax Hospital in 1990 and 1992. He also indicated that he had right knee surgery at Bert Fish Hospital in 2000. The Board also notes that the treatment records from Atlantic Orthopaedics and Atlantic Medical Center dated in July 1999 appear to be incomplete. Therefore, additional records, as set forth below, should be obtained on remand. Review of the record also shows that the Veteran has applied for Social Security Administration (SSA) disability benefits. However, VA has not obtained any records from SSA. Therefore, on remand the RO should request any available SSA records. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992) (VA's duty to assist includes obtaining SSA decision and supporting medical records pertinent to VA claim). In November 2009, the Veteran was afforded a VA examination. At that time, the examiner opined that the Veteran's current right knee disability was less likely as not related to his chondromalacia patella in active service, and that his low back disability, diagnosed as lumbar degenerative disc disease with moderate mechanical low back pain, was not aggravated by his right knee disability, but rather was due to age. However, at the time of the VA examination, the examiner did not have access to the Veteran's private medical records, nor any medical evidence prior to 1999, and does not appear to have considered the Veteran's lay statements indicating that he has experienced right knee pain since active service. The Board notes that the Veteran is competent to report when he first experienced right knee pain and that the pain has continued since active service. See Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, the Board finds the Veteran credible in this regard. Therefore, the November 2009 VA examination and opinion are inadequate. The Board finds that the Veteran should be afforded a new VA examination to determine the nature and etiology of his right knee disability. The examiner should take into account the Veteran's private medical records, lay statements, and any new medical evidence available. In addition, the Board observes that a decision on the claim for service connection for a right knee disability could change the outcome of the Veteran's claim for service connection for a low back disability. As such, the claims are inextricably intertwined. For this reason, the issue of service connection for a right knee disability must be resolved prior to resolution of the Veteran's claim for service connection for low back disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, the claim for service connection for a low back disability is also subject to the instant remand. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain any outstanding private treatment records, especially any relevant records dated from January 1980 through July 1999 (to include, but not limited to, treatment records from Halifax Hospital dated in 1990 and 1992; treatment records from Bert Fish Hospital dated in 2000; treatment records from Atlantic Orthopaedics dated in 1999; and treatment records from Atlantic Medical Center dated in 1999). 2. Make arrangements to obtain the Veteran's treatment records from the Orlando VA Healthcare System, dated from January 1980 to February 2004 and dated since April 2011. 3. Request from SSA complete copies of any disability determination(s) it has made concerning the Veteran and copies of the medical records that served as the basis for any such decision(s). If these records are not available, a negative reply is required. 4. Thereafter, the Veteran should be afforded a VA examination of his right knee. All indicated tests and studies are to be performed. In conjunction with the examination, the entire claims folder must be made available to the examiner for review. A notation to the effect that this record review took place should be included in the report of the examiner. After reviewing the file and examining the Veteran, the examiner should identify all current pathologies of the right knee. In regard to EACH diagnosed condition, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the current disorder had its clinical onset during active service or is related to any in-service disease, event, or injury. In providing this opinion, the examiner should acknowledge the Veteran's complaints of knee pain and diagnosis of chondromalacia patella during his military service as noted on his service treatment records, and his complaints of continued symptomatology and requisite treatment after service. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 5. Next, review the claims file and ensure that the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If the examination report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 6. Finally, after completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with an SSOC and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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). These claims 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). _________________________________________________ P.M. DILORENZO 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) (2013).