Citation Nr: 1517727 Decision Date: 04/24/15 Archive Date: 05/04/15 DOCKET NO. 13-07 299 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas. THE ISSUE 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 2004 to March 2009. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Salt Lake City, Utah Department of Veteran Affairs (VA) Regional Office (RO). In March 2015, a video conference hearing was held before the undersigned; a transcript of the hearing is associated with the record. The case is now in the jurisdiction of the Houston, Texas RO. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Further development is needed to satisfy VA's duty to assist the Veteran. Pertinent VA treatment records appear to be outstanding. At the March 2015 hearing, the Veteran testified that he sought VA treatment for knee disability about 2 months after his separation from service. The earliest records of VA treatment in the record are dated in 2010 (more than 9 months after his discharge from active duty, and the Veteran left service in 2009. He also testified that he receives ongoing VA treatment for his knees; the most recent VA treatment records in the record are dated in July 2013. As records of earlier and more recent VA treatment may contain information pertinent to the instant claims, and are constructively of record, they must be secured. Furthermore, the Veteran was scheduled for a July 2013 VA examination in conjunction with this claim, but failed to report. A June 2013 record notes that he had called to reschedule that examination (because he would be out of town); however, and the record does not show an attempt to reschedule the examination. At the March 2015 hearing, the Veteran testified that he is willing to report for a rescheduled examination. As good cause is shown for his failure to report for the July 2013 VA examination, the examination should be rescheduled (after the further development ordered above is completed). The record suggests that the Veteran has bilateral knee arthralgia with no discernable source. As he served in Southwest Asia during the Persian Gulf War Era, and is entitled to consideration of his claims under 38 U.S.C.A. § 1117, the examination must encompass whether he has "an undiagnosed" illness manifested by knee pain. Accordingly, the case is REMANDED for the following: 1. The AOJ should secure for the record complete clinical records of all VA evaluations and/or treatment the Veteran has received for knee disability since his discharge from service in March 2009. He should be asked to identify the VA facility where he received treatment for his knees a couple of months after his discharge from service, and records of such treatment, as well as complete clinical records of all VA evaluations or treatment he received for his knees since July 2013 must be sought in particular. If any records sought are unavailable, it must be so noted for the record (along with the reason for their unavailability), and the Veteran should be so notified. 2. The AOJ should then arrange for the Veteran to be examined by an orthopedist to determine the nature and likely etiology of his right and left knee disabilities. The entire record must be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: a. Please identify, by diagnosis, each chronic right and left knee disability entity found, or shown by the record. b. Please identify the likely etiology for each right and left knee disability entity diagnosed. Specifically, is it at least as likely as not (a 50 percent or better probability) that the disability is related to the Veteran's service, to include the notations of shin splints/reports of overuse therein? c. Does the Veteran an undiagnosed illness manifested by right and/or left knee joint pain? The examiner must include rationale with all opinions, citing to supporting factual data as deemed appropriate. 3. The AOJ should then review the record and readjudicate these claims. If either remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative an opportunity to respond before the record is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ GEORGE R. SENYK 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).