Citation Nr: 1410108 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 10-05 712 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for manic depressive reaction. 2. Entitlement to service connection for a left knee disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Jose, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1960 to March 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision decided by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board observes that the Veteran requested a Board hearing before a Veterans Law Judge in connection with his appeal. He was informed in a November 2013 letter that his requested hearing had been scheduled for January 2014; however, he failed to report for such hearing. Therefore, his request for a Board hearing is considered withdrawn. 38 C.F.R. §§ 20.702(d), 20.704(d) (2013). The Board also notes that, in addition to the paper claims file, the Veteran also has electronic Virtual VA and Veteran Benefits Management System (VBMS) paperless claims files. A review of the documents in Virtual VA reveals that, with the exception of a January 2014 Appellant's Brief submitted by the Veteran's representative, they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. Further, the Veteran's VBMS file does not contain any documents at this time. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). With respect to the Veteran's application to reopen his claim of entitlement to service connection for manic depressive reaction, psychiatric treatment records, to include those dated in February 2008 and April 2008, reflect that the Veteran receives disability benefits through the Social Security Administration (SSA). The Veteran's representative indicated in her January 2014 Appellant's Brief that he has been in receipt of SSA benefits since 1990. However, neither a decision regarding this award nor any of the medical records used in the decision are associated with the claims file. As such, a remand is necessary in order to obtain any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). With regard to the Veteran's claim for service connection for a left knee disorder, the Board notes his service treatment records include an X-ray report that states, "[f]ilms of the left knee reveal the presence of fragmentation and non-union of tibial tubercle. This is the result of an Osgood Schlatter's disease which is in the process of healing. Soft tissue swelling over the tibial tubercle is noted." Post-service VA treatment records dated in September 2007 indicate that he has a bony ossicle, adjacent to the tibial tuberosity, that may be secondary to old trauma or possibly old Osgood-Schlatter's disease. The Veteran was scheduled for a VA examination in March 2013 in order to ascertain the nature and etiology of his claimed left knee disorder; however, he was unable to attend the examination as he was in a nursing home at the time. In light of the in-service findings referable to the left knee and the September 2007 indication of a bony ossicle, the Board finds that a VA examination with an opinion is necessary to decide the claim. In this regard, if he is unable to attend an examination or fails to report for it, the VA examiner should provide a medical opinion based on the evidence of record. Finally, on remand, the Veteran should be given an opportunity to identify any VA or non-VA healthcare provider who treated him for his manic depressive reaction and left knee disorder. Thereafter, the AOJ should obtain all outstanding treatment records that have been identified by the Veteran for consideration in his appeal. Accordingly, the case is REMANDED for the following action: 1. Contact the SSA and obtain any administrative decisions and all medical records used in adjudicating the Veteran's award of disability benefits. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e) . 2. Request that the Veteran identify any VA or non-VA healthcare provider who treated him for manic depressive reaction and a left knee disorder. After securing any necessary authorization from him, obtain all identified treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and etiology of his claimed left knee disorder. The claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. If the Veteran is unable to attend or fails to appear for such examination, the examiner should provide a medical opinion based on the evidence of record. Based on examination findings (if available) and a review of the record, the VA examiner should address the following inquiries: (A) Does the Veteran currently have a left knee disorder? If so, please identify the diagnosis/es. (B) For each currently diagnosed left knee disorder, is it at least as likely as not (50 percent probability or greater) that such is related to his military service, to include the in-service notation referable to Osgood Schlatter's disease? A complete explanation must be provided for all opinions offered. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the 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 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). _________________________________________________ A. JAEGER 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).