Citation Nr: 1339907 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 11-18 538A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for left knee degenerative joint disease. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to October 1968 and from February 1969 to October 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was received in April 2010, a statement of the case was issued in June 2011, and a substantive appeal was received in July 2011. The Veteran testified at a Board hearing in October 2012. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised by correspondence dated in November 2010. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. 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 The Veteran contends he has a left knee disability as a result of his active duty service. Specifically, the Veteran testified that as a result of carrying heavy equipment up and down scaffolding he required an in-service meniscectomy in June 1969 that resulted in his current disability, to include degenerative joint disease. It appears from his testimony that he is denying any left knee injury prior to service and that service treatment records are not accurate. A review of service treatment records shows a February 1968 Report of Medical History with the appropriate box marked to indicated that he had a "trick" knee, and it was noted that he suffered an old football injury to his left knee, that on occasion would give out. Additional service treatment records show that the Veteran sought treatment in March 1969 where he reported a bad knee as the result of a football injury. An in-service orthopedic consultation report again noted a 1967 football injury to his left knee. Additionally, a June 1969 treatment record noted that the Veteran had a 20 month history of pain in the medial and posterior aspects of the left knee dating back to an original football injury 20 months prior. This report also noted a subsequent injury to his left knee 6 months following the initial injury. A meniscectomy was performed in June 1969. Records of the Veteran's pre-service football injury are not of record. It appears the Veteran attempted to secure these records in July 2011 by completing a Request for Information Needed to Locate Medical Records. No response is of record. As these records may be pertinent to the Veteran's claim, VA has an obligation to assist the Veteran in obtaining them. 38 C.F.R. § 3.159(c). Upon remand, the RO should request the Veteran identify the providers of treatment and/or evaluation received following his football injury, and submit the necessary authorizations to allow VA to secure any such records. Additionally, the Veteran testified that he sought treatment from three knee specialists. See page 11 of the hearing transcript. The Veteran specifically identified Dr. Longnecker of Jacksonville and Dr. Berger of Chicago. A third doctor was not identified. The current record contains only one record of treatment from Dr. Longnecker. Therefore, on remand the complete clinical records of all private treatment must be secured. 38 C.F.R. § 3.159(c)(1). Furthermore, the record suggests the Veteran received treatment at a VA medical center (VAMC). The most recent record of treatment is dated in July 2010. Updated records of treatment for any left knee disabilities may contain pertinent information and must be secured. 38 C.F.R. § 3.159(c)(2). In view of the above, the Veteran should be scheduled for another VA examination to determine the nature and etiology of his left knee disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Questions raised by the record in this case include whether a preexisting left knee disorder was aggravated by either period of service, or whether there was a separate injury to the left knee during service. Accordingly, the case is REMANDED for the following actions: 1. The RO should ask the Veteran to identify all providers of treatment he has received for his left knee disability, to include the three knee specialists that he testified treated his current disability (including Drs. Berger and Longnecker). Additionally, the Veteran is asked to identify all providers of treatment he has received for his left knee prior to his active duty service (to include treatment for a football injury). The Veteran must provide the authorizations necessary for VA to obtain all outstanding records of any such private treatment. The RO should attempt to secure for the record copies of the complete treatment records from the sources identified. 2. The RO must obtain copies of all relevant VA treatment records from July 2010 to the present. 3. After the above development has been completed, the RO should schedule the Veteran for a VA examination by an orthopedist for the purpose of ascertaining the likely etiology of his current left knee disability. It is imperative that the claims file be made available to and be reviewed by the examiner in connection with the examination. After reviewing the claims file, and examining the Veteran, the examiner should respond to the following: a) was there an increase in severity of preexisting left knee disability (beyond the natural progress of the disability) during either of the Veteran's periods of active duty service? If so, please identify the current residuals. b) was there a separate injury to the left knee during either period of active duty service? If so, please identify the current residuals. If the Veteran declines to report for the VA examination, the claims-file should nevertheless be forwarded to an appropriate examiner for review, and a report addressing the questions above should nevertheless be completed on the basis of the available evidence and information. 4. In the interest of avoiding further remand, the RO should review the medical opinion obtained and ensure that an adequate opinion with rationale has been offered. 5. After completion of the above and any additional development the RO may deem necessary, the RO should review the expanded record and readjudicate the claim. If the benefit sought on appeal remains denied, the RO must furnish the Veteran and his representative with an appropriate supplemental statement of the case and be afford an opportunity for response. The case should then be returned to the Board for appellate review. 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). _________________________________________________ ALAN S. PEEVY 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).