Citation Nr: 1342888 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 12-30 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for residuals of a left knee injury. 2. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to November 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied entitlement to service connection for a left knee injury and low back pain. 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 Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In a June 2010 statement, the Veteran indicated that he received treatment for residuals of his left knee injury and low back condition at the VA medical center in Kansas City, Missouri. He requested that VA obtain these records and use them in deciding his claim. VA medical records showing treatment from December 2009 to April 2010 are in the claims file; however no more recent medical records are in the claims file or the VA's online records system, Virtual VA. As such, on remand, these records should be obtained and associated with the claims file. The Veteran has contended that he was treated while on active duty for his left knee and low back at Beale Air Force Base (AFB). These records are not included in his service treatment records. The record includes a Formal Finding on Unavailability of inpatient clinical records from Beale AFB from January 1, 1969 to November 20, 1972. This memo reports that actions taken by the VA in order to obtain the Veteran's medical records showing treatment for his left knee and law back, which include contacting the National Personnel Records Center National Personnel Records Center (NPRC) and contacting the Veteran. The records were not obtained using these methods. The Board finds that further action should be taken to attempt to obtain these records, including contacting the Veteran's service department and the hospital or medical center at Beale Air Force Base in order to attempt to obtain these records. VA is obliged to provide an examination 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); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon at 83. A Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon at 83. Notwithstanding the lack of medical records showing treatment at Beals Air Force Base for his injuries, in this case, the Veteran has submitted two buddy statements from fellow service members in support of his claim. In one, a fellow service member indicated that he had seen the Veteran receiving treatment for his left knee and low back at Beale Air Force Base during the appropriate time period. The other statement, from another fellow service member, with whom the Veteran has been friends since they left service, noted that he had personal knowledge that the Veteran could not play basketball while he was on active duty, because he was in pain. He remembered that the Veteran was receiving physical therapy for his knee and back problems at the Base Hospital on a regular time. The Veteran has contended that his left knee and low back disabilities have been chronic in nature since service. The Veteran is competent to provide lay evidence of ongoing pain since service, and his fellow service members are competent to report. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). As nothing in the record has contradicted these reports, the Board finds that these statements are credible, as well. The Veteran was afforded a VA examination in September 2010. The examiner diagnosed chronic soft tissue strain to the lumbosacral spine and left knee; however, this examiner did not provide a nexus opinion with regard to these disabilities. As the Veteran has provided lay evidence that he was treated while on active duty for low back and left knee disabilities and of ongoing symptoms since service, and the record contains evidence of current diagnoses, the Board finds that a VA examination should be provided to the Veteran in order to determine whether the Veteran has a low back or left knee disability that is related to service. Accordingly, the case is REMANDED for the following action: 1. Obtain all records of treatment related to the back or left knee from the VA since April 2010. 2. Contact the Veteran's service department and the hospital or medical center at Beale Air Force Base in order to obtain his treatment records for the period from January 1, 1969 to November 20, 1972. 3. Schedule the Veteran for a VA examination to determine the etiology of his lumbosacral spine and left knee disorders. All indicated tests and studies should be conducted. The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's lumbosacral spine and left knee disorders were caused by or are etiologically related to any incident of active duty. The examiner must provide reasons for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. 4. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. 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). 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). _________________________________________________ J.A. MARKEY 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).