Citation Nr: 1339384 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 10-07 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a right knee disability, to include a meniscus tear, an anterior cruciate ligament tear, and a scar. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1981 to May 1987, from April to August 2008, and from November 2008 to July 2009. He also had various periods of active duty for training and inactive duty training with the Air Force Reserve. This matter comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In that decision, the RO denied entitlement to service connection for a right meniscus tear, a right anterior cruciate ligament tear, and a right knee scar. The RO in Houston, Texas currently has jurisdiction over the Veteran's claim. In his January 2010 substantive appeal (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge at the RO (Travel Board hearing). In September 2011 he withdrew his hearing request. In addition to the paper claims file, there are Virtual VA and Veteran's Benefits Management System (VBMS) paperless claims files associated with the Veteran's claim. The documents in these files have been reviewed and considered as part of this appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the 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. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. In this case, an October 2007 VA examination report includes a diagnosis of a Segond fracture of the right knee. Thus, there is competent evidence of a current right knee disability. The physician assistant who conducted the October 2007 examination indicated that the Veteran's service treatment records revealed that he had injured his right knee and that he had sustained a Segond fracture of the knee at that time. An X-ray report dated in February 1982 confirms that there was a chip fracture of the right lateral tibial plateau and possible joint effusion of the right knee. In sum, there is competent evidence of a current right knee disability (diagnosed as a Segond fracture) and an in-service right knee injury (also identified as a Segond fracture). Hence, the evidence suggests that the current right knee disability may be related to the in-service injury. Thus, VA's duty to obtain an examination as to the nature and etiology of any current right knee disability, is triggered. Such an examination is needed to obtain a medical opinion as to the etiology of any current right knee disability. Moreover, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2013). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). In November 2006, the Veteran submitted a signed and completed "Authorization and Consent to Release Information" form (VA Form 21-4142) for records of treatment for a right knee disability from the San Antonio Orthopaedic Group (San Antonio). In July 2007, the agency of original jurisdiction (AOJ) sent a letter to the Veteran and requested that he provide an adequate address for San Antonio in order to allow VA to request the identified records. The Veteran subsequently provided an address for San Antonio by way of an August 2007 statement (VA Form 21-4138), but the AOJ did not take any further action to obtain all relevant treatment records from that facility. Although the Veteran submitted some treatment records from San Antonio, these records indicate that there may be additional records that have not yet been obtained. For instance, a June 2005 treatment record reflects that he was scheduled for an additional 4 weeks of right knee rehabilitation. However, there are no more recent treatment records from San Antonio in the claims file or among the Veteran's paperless records in the Virtual VA or VBMS systems. Thus, a remand is also necessary to attempt to obtain any additional relevant private treatment records. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to complete an authorization for VA to obtain all records of his treatment for a right knee disability from the San Antonio Orthopaedic Group dated since June 2005. All efforts to obtain these records must be documented in the claims file. If the Veteran fails to furnish any necessary releases for private treatment records, he shall be asked to obtain the records and submit them to VA. If any putative records are unavailable, the Veteran shall be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claim. All such notification must be documented in the claims file. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA examination to determine the nature and etiology of any current right knee disability. All indicated tests and studies shall be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA and VBMS systems, along with any records obtained pursuant to this remand, must be sent to the examiner for review. For each current right knee disability identified (i.e. any right knee disability diagnosed since November 2006, including a Segond fracture, any meniscus tear, any anterior cruciate ligament tear, and any scar), the examiner shall indicate whether it is at least as likely as not (50 percent probability or more) that the current right knee disability had its clinical onset during any period of active service, had its clinical onset in the year immediately following any period of active service (with respect to any arthritis), is related to the Veteran's right knee injury in service in February 1982, or is otherwise the result of a disease or injury in service. In formulating the above opinion, the examiner shall specifically acknowledge and comment on all right knee disabilities diagnosed since November 2006, all instances of treatment for right knee problems in the Veteran's service treatment records (including the February 1982 X-ray evidence of a right knee injury), and his right knee injury which was sustained while skiing in December 2004. The examiner must provide reasons for each opinion given. 3. If the benefit on appeal remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board. No action is required of the Veteran until he is notified by the AOJ; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2013). The Veteran 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). _________________________________________________ THOMAS J. DANNAHER 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).