Citation Nr: 1338122 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 06-21 628 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: Maxwell D. Kinman, Attorney at Law ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active duty service from July 1968 to June 1971. Additionally, he had service in the Army National Guard from January 1981 to August 1991, with approximately 4 years of National Guard service prior to January 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied reopening service connection claims for right and left knee disorders. The Veteran timely appealed those issues. This case was initially before the Board in July 2010, at which time claims of service connection for right and left knee disorders were reopened and remanded for further development. In March 2012, the Board denied entitlement to service connection for right and left knee disorders. In the same decision, the Board remanded a claim of entitlement to a compensable evaluation for hearing loss. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which in a March 2013 Order, granted the parties' Joint Motion, vacating in part the Board's March 2012 decision and remanding the knee claims for compliance with the terms of the Joint Motion. The Board notes that, in addition to the physical claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claims based upon all relevant evidence. 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 In a March 2012 Order, the Court granted a Joint Motion in which the parties agreed that the Veteran's right and left knee claims should be remanded. The parties acknowledged that the Veteran's claim of entitlement to a compensable evaluation for service-connected hearing loss was not before the Court, as the mater had been remanded by the Board in March 2012 for further development. See Breeden v. Principi, 17 Vet. App. 475, 478 (2004) (Board remand does not represent a final decision over which the Court has jurisdiction). Specifically, the parties to the Joint Motion noted that the Board found that the Veteran's lay statements that his left and right knee disorders were "due to slipping and falling in a mess hall, falling out of a truck and injuring his knees, and twisting his knees doe to being trapped in a sleeping bag." However, the Board also determined that "such accounts of injuries during active military and National Guard service to be not credible in light of the significant lack of any documentation of or treatment for such injuries during his periods of service." The parties to the Joint Motion then determined that the Board's credibility determination was at odds with the Court's holding in Buchanan v. Nicholson, 451 F.3d 1331 (2006) (the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). As such, the matter was remanded. In addition, the Board notes that this matter was remanded in July 2010 in part in order to afford the Veteran a VA examination in connection with his claim. A VA examination was afforded the Veteran in August 2010 and cited in the subsequent March 2012 Board decision. However, a review of the claims file, to include the Veteran's virtual claims file, does not include a copy of this examination report. Based on the foregoing, the Board finds that this matter must be remanded and that the Veteran's August 2010 VA examination report must be associated with the Veteran's claims file. The claims file should then be returned to the August 2010 examiner for additional opinion, specifically commenting on the Veteran's statements that his knee disabilities are "due to slipping and falling in a mess hall, falling out of a truck and injuring his knees, and twisting his knees doe to being trapped in a sleeping bag" while on active duty in the military and active duty service in the National Guard. In this regard, the Board notes that the service personnel records indicate that the Veteran served on active duty for training (ACTDUTRA) in the National Guard over various dates from 1978 to 1996. However, the claims file does not contain complete records of ACTDUTRA service dates- it appears the list of dates ends in August 1986, but a points sheet indicates additional service through 1996 (without specifying the exact dates during which such service occurred). Upon remand, complete copies of all service personnel records from the Veteran National Guard service should be requested, to include additional ACTDUTRA dates through 1996, and the RO/AMC should specifically determine the dates that the Veteran served on ACTDUTRA and inactive duty for training (IDT). Prior to affording the Veteran an additional VA examination, the RO should associate with the claims file records of the Veteran's treatment for his claimed disability, to include updated VA treatment records. The Veteran should also be afforded an opportunity to submit additional medical evidence relevant to his claim that may not be associated with the claims file. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the 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). Pursuant to the VCAA, VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. Request complete copies of all service personnel records and service treatment records for the Veteran's service in the National Guard through 1996. Determine the dates that the Veteran served on ACTDUTRA and IDT. 2. Take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the claims file, that have treated him since service for his claimed knee disabilities. This should specifically include updated treatment records from VA and a copy of the August 2010 VA examination report for his bilateral knee claim. The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. The Veteran may submit medical records directly to VA. 3. After all available treatment records have been associated with the claims file, if the individual who conducted the August 2010 VA examination is available, forward the entire claims file, including a copy of this remand, for an addendum report in response to the following questions. Review of the claims file should be noted in the examination report. If any further testing or diagnostic studies are necessary prior to offering such opinions, they should be completed. If the August 2010 VA examiner is not available, schedule the Veteran for another VA examination to determine the nature and etiology of his claimed disabilities. All necessary tests and studies should then be conducted. The examiner should respond to the following questions: (a) Does the Veteran have left and right knee disabilities? If so, state the diagnosis or diagnoses. (b) If the examiner finds that the Veteran has left and right knee disabilities, did such disorders have their onset during active duty, within one year of active duty, or are these conditions otherwise related to the Veteran's military service? Did the Veteran's bilateral knee disabilities have their onset due to an injury or disease during a period of ACTDUTRA or due to an injury during a period of IDT in the National Guard? In this regard, the examiner is asked to comment on the Veteran's service and post-service medical treatment records. The examiner should also comment on the Veteran's lay statements that his left and right knee disorders were "due to slipping and falling in a mess hall, falling out of a truck and injuring his knees, and twisting his knees doe to being trapped in a sleeping bag." In offering any opinion, the examiner must consider the Veteran's lay statements regarding the incurrence of his claimed disorders and the continuity of symptomatology. The rationale for any opinion offered should be provided. If the examiner finds that he or she cannot provide a nexus opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 4. After undertaking any additional development deemed appropriate in addition to that requested above, re-adjudicate the issues remaining on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case. 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). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by attending a requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). _________________________________________________ ERIC S. LEBOFF 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).