Citation Nr: 1337252 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-33 610 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served in the Army National Guard from December 1979 to December 1985, with periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ) in March 2013. 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 seeks entitlement to service connection for a bilateral knee disorder. He has been diagnosed as having bilateral knee degenerative arthritis, and underwent a total right knee arthroplasty. He contends that his current bilateral knee disability resulted from his duties as a wheel vehicle mechanic, and track vehicle mechanic which involved constant kneeling and crawling, during his military service. The Veteran's service personnel records reveal that he served in "wheel vehicle repair" during ACDUTRA and as a track vehicle mechanic during INACDUTRA. When a claim for service connection is based on a period of ACDUTRA or INACDUTRA, there must be evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA, or as a result of injury incurred or aggravated in the line of duty during that period of INACDUTRA. See 38 U.S.C.A. §§ 101(2), (22), (24); 38 C.F.R. § 3.6(a); Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (citing Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995)). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "Veteran" for that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101(2), (24); see Acciola, 22 Vet. App. at 324. Here, the Veteran's service treatment records are silent for any complaint, treatment, or diagnosis of knee symptomatology. However, at his March 2013 Board videoconference hearing, the Veteran testified that he experienced pain in both of his knees from his military service to the present. In a VA orthopedic surgery note dated in August 2009, a VA physician indicated that the Veteran was an "old rancher" who had ridden horses when he was younger and apparently hurt his right knee after being "taken down" by a bull. The physician indicated that the Veteran complained of bilateral knee pain and had developed some bowleggedness. However, in a subsequent VA orthopedic surgery note dated in March 2010, the same VA physician indicated that the Veteran "worked as a wheel and track mechanic for the Nebraska National Guard 1979 to 1985 which required heavy lifting, kneeling, crawling around under equipment, and generally took a toll on both of his knees. The patient has had no significant injuries to his knees that would have caused his arthritis; this is accumulative problem that has occurred because of years of working on his knees when he was in the National Guard." During his March 2013 Board videoconference hearing, the Veteran testified that following his time with the National Guard, he took a job with a municipal street department where his duties consisted primarily of sitting while driving vehicles. Accordingly, as the Veteran alleges that he had knee symptomatology during his military service, and the record includes a VA physician's opinion raising the possibility that the Veteran's current knee symptomatology first manifested during his military service as a result of his continued duties in wheel vehicle repair, and track vehicle mechanic, a VA examination to determine the likelihood that his current knee disabilities are etiologically related to his military service would be useful in adjudicating the appeal. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, the Board concludes that there might be outstanding records pertinent to the Veteran's claim, and a remand is also necessary to obtain these records. The evidence of record indicates that the Veteran applied for Social Security Administration (SSA) disability benefits based on his bilateral knee disorder. In Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992), the United States Court of Appeals for Veterans Claims (Court) found that VA's duty to assist specifically included requesting information from other Federal departments. The Court has further held that VA must obtain SSA records which may have a bearing on claims for VA benefits. See Waddell v. Brown, 5 Vet. App. 454 (1993); Clarkson v. Brown, 4 Vet. App. 565 (1993); Shoemaker v. Brown, 3 Vet. App. 519 (1993). Moreover, the Court has determined that, "[i]n the context of the duty to assist in obtaining records, the relevance of the documents cannot be known with certainty before they are obtained." Hyatt v. Nicholson, 21 Vet. App. 390 (2007). The Board is aware that it need not obtain SSA records prior to determining that there is no reasonable possibility that such are relevant to the Veteran's claim for VA compensation. See Golz v. Shinseki, 590 F.3d 1317, 1320-1321 (Fed. Cir. 2010). However, that possibility cannot be excluded under the circumstances presented here, and the RO should request the Veteran's SSA records. See Golz, 590 F.3d at 1321. Accordingly, the case is REMANDED for the following action: 1. Contact the Social Security Administration and request a copy of any decision made pursuant to a claim by the Veteran for disability benefits, as well as the medical records upon which any decision was based. All requests and responses, positive and negative, should be associated with the Veteran's claims file. Efforts to obtain these records must continue until the RO determines that the records sought do not exist or that further efforts to obtain the same would be futile. If it is so determined, then appropriate notice under 38 C.F.R. § 3.159(e) must be provided to the Veteran and his representative, and he must then be afforded an opportunity to respond. 2. Then provide the Veteran with a VA examination to ascertain the probable etiology and date of onset of his bilateral knee disability. The Veteran's entire claims file and all records on Virtual VA must be made available to the examiner. All necessary special studies or tests must be accomplished. After review of the Veteran's service treatment records, the post-service medical records, and the Veteran's lay statements as to the onset of bilateral knee symptomatology to the present, the examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's current bilateral knee disability is etiologically related to accumulative knee injury sustained during military service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). 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). _________________________________________________ U. R. POWELL 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).