Citation Nr: 1337258 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 11-00 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a left foot disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD U. Ifon, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from February 18, 1985 to August 1, 1985, with prior and subsequent service in the United States Army National Guard (National Guard), from February 1984 to August 1991. This appeal to the Board of Veterans' Appeals (Board) is from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In November 2011, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video conference hearing. A hearing transcript has been associated with the claims file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 Board's review of the claims file reveals that a remand is required in order to afford the Veteran a VA examination. The Veteran contends he injured his left knee and foot while playing in a softball game during his period of active service in May 1985. In an October 2009 statement, S.G. reported seeing the Veteran using crutches in the mid 1980's. In a May 2011 statement, P.M., a fellow serviceman, stated that he witnessed the Veteran injure himself in a softball game. He also reported seeing the Veteran using crutches two days later. Service treatment records (STRs) from the Veteran's period of active service are unfortunately unavailable for review. In such situations, VA has a heightened duty to assist the Veteran by advising him of alternative forms of evidence that can be developed to substantiate the claim, and explaining how service records are maintained, why the search was reasonably exhaustive, and why further efforts to locate the records would not be justified. Dixon v. Derwinski, 3 Vet. App. 261, 263-264 (1992). However, the Veteran had been using the wrong social security number until his early twenties, and thus registered with the National Guard under the wrong social security number. The Veteran contends he alerted the National Guard of the error, and believes the search for his service records may have been affected by the mix-up. See November 2011 video conference hearing transcripts. Given the Veteran's contentions, the Board finds that an additional attempt should be made to secure his STRs. Private treatment records show the Veteran complained of pain in his left foot and left knee in June 2009 and the treating physician made a notation of arthritis on his examination report. X-rays taken shortly thereafter, in July 2009, showed mild hypertrophic changes but no active processes in the Veteran's left knee, and negative findings for his left foot. In the November 2011 video conference hearing, the Veteran reported that he currently experiences symptoms of cramping of the foot and swelling of the knee. He also stated he is currently on medication and administers self-treatments, as necessary. The Veteran asserts he has experienced pain and discomfort in his left knee and left foot for some time since his discharge from service. The Veteran, as a lay person, is competent to report observable symptoms such as pain. See Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran has not yet been afforded a VA examination to determine the etiology of any current left knee or left foot disability. VA is obligated to provide an examination when the record contains competent evidence that a claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103(A)(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); 38 C.F.R. § 3.159(c)(4) (2013). The Board finds that such an examination should be accomplished on remand. Accordingly, the case is REMANDED for the following actions: 1. Make a second attempt to obtain active duty records and contact the appropriate reserve component to request personnel records and STRs. Special attention should be given to the Veteran's social security number at entrance and at discharge from service. All records received should be associated with the claims file. If any records are not obtained or unavailable, inform the Veteran pursuant to 38 C.F.R. § 3.159(e) and provide him an opportunity to submit the records. Any negative responses should be properly annotated into the record. If these records do not exist, please ensure that the designated treatment facility and/or treatment provider clearly states as such in its response. 2. Detail the beginning and ending dates of each period of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) and notate them in the claims file. 3. After the aforementioned development has been completed, schedule the Veteran for a VA orthopedic examination with an appropriate medical professional. The examiner is requested to review all pertinent records associated with the claims file. The examiner is to diagnose all left knee and left foot pathology found to be present on examination, specifically ruling in or excluding a diagnosis of arthritis. Thereafter, as to each diagnosed disability, the examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability: (a) had its onset during the Veteran's period of active military service, or any period of reserve military service (i.e., ACDUTRA and INACDUTRA); (b) is related to the Veteran's active military service, or any period of reserve military service (i.e., ACDUTRA and INACDUTRA); (c) was permanently increased beyond its natural progression during any period of reserve military service (i.e., ACDUTRA and INACDUTRA). A complete explanation should be provided for all opinions and conclusions, to include a discussion of the Veteran's contentions, as well as all lay assertions and private medical opinions of record. If the examiner cannot respond without resorting to speculation, the examiner should explain why a response would be speculative. 4. Readjudicate the issues on appeal. If the benefits sought remain denied, provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time for response. The Veteran 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. 2013). _________________________________________________ CHERYL MASON 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).