Citation Nr: 1515211 Decision Date: 04/08/15 Archive Date: 04/21/15 DOCKET NO. 08-09 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right knee disorder, characterized as a partially torn meniscus. 2. Entitlement to service connection for a right ankle disorder. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from July 1960 to June 1962. This matter is on appeal from a May 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge in September 2009. A transcript of the hearing is of record. In a March 2011 decision, the Board denied the issues listed on the title page. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In November 2012, the Court issued a memorandum decision, setting aside the March 2011 Board decision and remanding the issues to the Board. The appeal was returned to the Board for action consistent with the November 2012 memorandum decision. A letter was sent to the Veteran on December 11, 2014 that informed him of the Court's decision, and that he had 90-days from the date of the letter or until the date the Board issued a decision on his appeal, whichever came first, to submit additional evidence or argument. The Virtual VA paperless claims processing system and the Veterans Benefits Management System have been reviewed. The Court's November 2012 Memorandum Decision is part of VBMS. The other documents in the electronic files are either duplicative of the evidence of record or are not pertinent to the present appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND This matter was Remanded initially in November 2009, in part, to schedule the Veteran with a VA examination. The purpose was to determine the nature and etiology of the Veteran's claimed right knee and right ankle disabilities. Such an examination was scheduled at the Daytona Beach VA Outpatient Center (VAOC). A September 2010 Report of General Information shows that the Veteran requested a VA examination at the Orlando VA Medical Center (VAMC) as it is closer to his home than the Daytona Beach location. His request was denied because the Clerk at the Orlando VAMC stated that he was not in their jurisdiction. An examination at the Daytona Beach VAOC was again offered. The Veteran responded in October 2010 by again asking for an examination at the Orlando VAMC. Documents associated with the November 2012 memorandum decision highlighted that the Clerk at the Compensation and Pension Department of the Orlando VAMC failed to support this jurisdictionally-based denial of an examination in closer proximity to the Veteran's home with any authority, include applicable statues, regulations, VA Adjudication Procedures Manual provisions. Indeed, in scheduling examinations, VA has an obligation to attempt to accommodate the needs of veterans. See e.g. Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (holding that those who adjudicate claims of incarcerated veterans must be certain that they tailor their assistance to the peculiar circumstances of confinement). Thus, in light of the duty to assist and in order to comply with the Court's directives, reasonable efforts should be made to schedule the Veteran for an examination in close proximity to his home or provide an explanation as to why scheduling such an examination is not possible. An attempt also needs to be made to obtain any outstanding service treatment records as the Veteran in September 2009 testified that during service in Fort Gordon, Georgia he was treated for his right knee and right ankle. The Veteran's assistance also should be obtained to ensure that copies of any outstanding records of pertinent medical treatment are identified and added to the claims file. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers for his right knee and right ankle, including treatment records in the possession of baseball franchises that he was associated with after service. Specifically ask that the Veteran complete and sign Forms 21-4142 authorizing VA to obtain private treatment records. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified. 2. Contact the National Personnel Records Center and any other appropriate Federal agency to make another attempt to secure all of the Veteran's service treatment records, base hospital records, and/or unit baseball team records for his period of active service from July 1960 to June 1962. In particular, the RO should attempt to obtain any records reflecting treatment for the Veteran's right ankle and right knee between July 1960 and June 1962 while he was stationed in Fort Gordon, Georgia, and playing for the Fort's baseball team. If VA attempts to obtain any outstanding records which are unavailable, the Veteran must be notified. 3. After the above records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of (a) any current right ankle disability and (b) any current right knee disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should review all pertinent records associated with the claims file, to include the Travel Board hearing transcript, the Veteran's service treatment records, and his private treatment records. The examiner should indicate (a) whether it is at least as likely as not (meaning likelihood of at least 50%) that any current right ankle disability is related to service, and (b) whether it is at least as likely as not that any current right knee disability is related to service. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Efforts should be made to perform the examination at the Orlando VAMC or at any other VA facility identified by the Veteran. If it is not possible to arrange an examination at the facility identified by that the Veteran, the VAMC must provide a detailed explanation for the denial of an examination in closer proximity to the Veteran's home with any authority, include applicable statues, regulations, VA Adjudication Procedures Manual provisions. Simply citing "jurisdictional reasons" will not be a sufficient explanation. 4. Afterwards, readjudicate the Veteran's claims. If either of his claims remains denied, the Veteran should be provided a Supplemental Statement of the Case. After the Veteran has been given the applicable time to submit additional arguments, the claims should be returned to the Board for further review. 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 2014). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).