Citation Nr: 1337023 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 10-39 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from January 2005 to January 2006 with additional service in the Marine Corps Reserve and Army National Guard, to include periods of unverified active duty for training (ACDUTRA). This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified before the Board at an October 2011 hearing conducted at the RO. A transcript of the hearing is of record. 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 claims service connection for a left knee disability as directly related to his period of active service and periods of ACDUTRA. A review of service treatment records reveals treatment for a left knee condition on several occasions, both during active and reserve service, including a diagnosis of patellar tendonitis. Furthermore, the Board observes the Veteran has been awarded the Combat Action Ribbon related to active duty service in Iraq. In-service incurrence of a left knee injury with resulting left knee pain is therefore well established. See generally 38 U.S.C.A. § 1154(b) (West 2002). Despite the Veteran's credible complaints of left knee pain, treatment records generated during the appeal period do not establish a current diagnosis of a left knee disability. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (a "current disability" exists if the diagnosed disability is present at the time of the claim or during the pendency of that claim). VA treatment records note a diagnosis of left knee arthralgia (left knee pain), while the result of a September 2009 VA joints examination, including x-rays, note no pathology to render a diagnosis of a left knee disability. The Board notes that pain by itself, without evidence of an underlying disability, does not constitute a disability for VA compensation purposes. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). The Veteran has identified a number of outstanding VA treatment records, testifying at the October 2011 Board hearing that he has received a number of cortisone shots in his left knee, and was last treated at a VA facility for his left knee in 2011. Treatment records related to his left knee condition have not been associated with the claims file since October 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. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). A remand is necessary to allow outstanding VA treatment records to be obtained and associated with the claims file. Further, given the Veteran's testimony regarding his left knee symptomatology, as well as asserted inconsistencies in the September 2009 VA examination report, the Veteran should be provided a new VA examination to determine if he suffers a current left knee disability and, if so, whether any such disability is related to his period of active service. See generally McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records. Specifically, records related to treatment for the left knee generated by VA facilities from October 5, 2009, to the present must be obtained. Efforts to obtain these records must be associated with the claims file and requests for these records must continue until the AOJ determines that the records sought do not exist or that further efforts to obtain those records would be futile. 2. Following the above, schedule the Veteran for an appropriate VA examination to address the nature and etiology of any currently diagnosed left knee disability. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. Following a review of the claims file and physical examination of the Veteran, the examiner should address the following: a. Offer a current diagnosis of any disability of the left knee, specifically commenting on whether the Veteran suffers from arthritis of the left knee. b. For each diagnosis rendered above, provide an opinion as to whether such disorder is at least as likely as not (probability of at least 50 percent) etiologically related to a period of qualifying military service. If arthritis is diagnosed, the examiner must address the Veteran's assertions of continuity of symptomatology. A complete rationale should be given for all opinions and conclusions expressed. 3. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ S. L. Kennedy 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).