Citation Nr: 1333225 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 11-15 434 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from October 1977 to September 1980. This matter came to the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The appellant's claim was subsequently transferred to the jurisdiction of the RO in Montgomery, Alabama. In December 2012, the appellant testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the appellant's Virtual VA file. The Board's review of the additional records in the appellant's virtual files indicates that they are duplicative of those currently located in the paper claims folder. For the reasons set forth below, a remand of this matter is required. 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 appellant contends that she developed a bilateral knee disability as a result of wear and tear and strenuous physical activity during her period of active duty, including rigorous physical training (PT) and long marches. As a preliminary matter, the Board notes that the appellant's service treatment records currently associated with the record are entirely negative for complaints or abnormalities pertaining to either knee. At her December 2012 Board hearing, however, the appellant testified that she had been treated on several occasions throughout her period of active duty for knee complaints, including an episode in which she had fluid drained from her knee. She also claimed that she was put on a physical profile for her knees during basic training and again during advanced individual training (AIT). Transcript at pages 3 to 5. VA's statutory duty to assist includes making as many requests as are necessary to obtain relevant records in the custody of a Federal department or agency, including the service department. 38 C.F.R. § 3.159(c)(2) (2013). Given the appellant's hearing testimony, the Board finds that additional evidentiary development is required to ensure all available service and personnel records have been obtained. Additionally, the Board notes that, at her December 2012 Board hearing, the appellant claimed that at least three of her physicians had indicated that her current knee disabilities could be related to the stringent PT requirements of the Army. Transcript at pages 8 to 10. The appellant is advised that there is currently no such opinion of record and that it would be to her benefit to submit statements from her physicians memorializing their purported opinions regarding the relationship between her current knee disabilities and her military service. 38 C.F.R. § 3.103 (2013); see also Bryant v. Shinseki, 23 Vet. App. 488 (2010). In addition, at the December 2012 hearing, the appellant testified that she had undergone a total right knee replacement in 2009. Transcript at page 8. She also recalls having received treatment for knee complaints shortly after her separation from service. She testified that she had submitted private treatment records to VA and that they should be in her file. The appellant is advised, however, that the current record on appeal contains no private treatment records dated earlier than 1997 or after 2008. The record does contain VA clinical records dated from November 2009 to May 2010, but these records are negative for any indication of a total knee replacement. The appellant is reminded that she has a legal obligation to cooperate fully with VA's reasonable efforts to obtain relevant records in support of her claim. 38 C.F.R. § 3.159 (2013). This includes providing VA with enough information to identify and locate relevant records, including the approximate time frame covered by the records, the condition treated, and the custodian or agency holding the records. Additionally, the appellant must authorize the release of these records in a form acceptable to the custodian. See 38 C.F.R. § 3.159(c)(2),(3) (2013). The appellant is advised that it would be to her benefit to submit or specifically identify relevant records in support of her claim, including records of treatment for her knee disabilities prior to 1997, as well as records corresponding to her reported total right knee replacement in 2009. Finally, given the evidence currently of record, the Board finds that a VA medical examination is necessary in connection with this claim. 38 C.F.R. § 3.159(c)(4) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that an examination is necessary when the record indicates that a current disability may be associated with service. This is a "low threshold," one which may be satisfied by evidence of continuity of symptomatology such as pain). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the appellant and afford her the opportunity to submit or identify all records of treatment for her claimed knee disabilities since her separation from service, to include any clinical records of treatment prior to 1997 and any clinical records corresponding to her reported right knee replacement in 2009, neither of which are currently of record. 2. The RO/AMC should contact the National Personnel Records Center (NPRC) or other appropriate repository of records and request the appellant's complete service personnel and treatment records, to include any additional records corresponding to any temporary physical profiles given to the appellant during basic training and AIT. The RO/AMC should only end its efforts to obtain these records if it is determined that the records sought do not exist or that further attempts to obtain them would be futile. In the event the RO/AMC is unable to obtain these records, the appellant must be notified in accordance with 38 C.F.R. § 3.159(e). 3. The RO/AMC should review the record and ensure that the record on appeal contains complete clinical records pertaining to the appellant from both the Montgomery VA Medical Center and the Childersburg Community Based Outpatient Clinic for the period from November 2009 to the present. The RO/AMC should only end its efforts to obtain these records if it is determined that the records sought do not exist or that further attempts to obtain them would be futile. In the event the RO/AMC is unable to obtain these records, the appellant must be notified in accordance with 38 C.F.R. § 3.159(e). 4. After any available records referenced above have been obtained and associated with the record, the appellant should be scheduled for a VA medical examination to determine the nature and etiology of her claimed bilateral knee disability. The claims folder and access to any additional records in the appellant's Virtual VA and VBMS files must be provided to the examiner for review in connection with the examination. The examiner is requested to review all pertinent records associated with the case, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which she had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the appellant and reviewing the claims folder, the examiner should provide an opinion as to whether it is at least as likely as not that any current bilateral knee disability identified on examination is related to the appellant's active service or any incident therein, including strenuous physical training and long marches. All opinions should be supported by a clear rationale. 5. After the development requested has been completed, and after conducting any additional development deemed necessary based on the additional evidence received as a result of his REMAND, the RO/AMC should readjudicate the claim, considering all the evidence of record. If the benefits sought remain denied, the RO/AMC must provide the appellant and her representative with a supplemental statement of the case, and afford them an appropriate period of time for response. Thereafter, if indicated, the case should be returned to the Board for appellate disposition. 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). _________________________________________________ JESSICA J. WILLS 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).