Citation Nr: 1618222 Decision Date: 05/06/16 Archive Date: 05/13/16 DOCKET NO. 12-21 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a skin disability. REPRESENTATION Appellant represented by: J. Michael Woods, Esq. ATTORNEY FOR THE BOARD Eric Struening, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1981 to March 1984. This matter is before the Board of Veteran's Appeals (Board) on appeal from a July 2008 rating decision by the St. Louis, Missouri Department of Veterans Affairs (VA) Regional Office (RO). [The Veteran's claims file is now in the jurisdiction of the Los Angeles, California RO.] The Veteran was scheduled for a Travel Board hearing in March 2013, but the hearing was postponed so he could obtain representation. He was rescheduled for a Travel Board hearing, but withdrew the hearing request in a statement received in June 2015. The Veteran's electronic record reflects he has also filed a notice of disagreement (NOD) with denials of service connection for sleep apnea, headaches, diabetes, and depression. The Agency of Original Jurisdiction (AOJ) has acknowledged receipt of the NOD and is in the process of preparing a statement of the case (SOC) in response. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action on his part is required. REMAND The Board notes that the only available STRs for the Veteran are a partially legible copy of his entrance examination and dental records. VA has a heightened duty to assist him in developing his claims. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). This duty includes a search for alternate source medical records, as well as a heightened obligation on the Board's part to explain its findings and conclusions, and carefully consider the benefit- of-the-doubt rule. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). The best alternate source medical record is the Veteran's California Air National Guard STRs. On a June 1990 examination, an osteoma on his right knee with tibial swelling was diagnosed. At that time the Veteran indicated he had a problem with his right knee since 1982 (which places it during his active service). An examination to address the etiology of the Veteran's knee disability is necessary. In March 2008, the Veteran (apparently in the belief that the information is material to his claims) submitted a copy of a Social Security Administration (SSA) letter advising him that he was found disabled and was awarded SSA disability benefits from November 2006. There is no further documentation pertaining to the award in the record, and the record does not reflect that SSA records were sought. As the Board is unable to find that medical records considered in connection with the SSA award are not material to the matter at hand, they must be sought. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Accordingly, the case is REMANDED for the following: 1. The AOJ should obtain from SSA copies of their decision awarding him SSA disability benefits and the underlying medical records upon which the award was based. If such records are unavailable, the reason for their unavailability must be explained for the record. If SSA's response is that the records are no longer available, the Veteran should be so advised, and asked to submit for the record any such records in his possession. 2. The AOJ should ask the Veteran to identify all providers of evaluations and treatment he has received for his right knee not already associated with the record present, and to provide the releases necessary for VA to secure the records of any such private evaluations and/or treatment. The AOJ should secure for the record complete clinical records of the evaluations and treatment from all providers identified. If any records sought are unavailable, the reason for their unavailability must be noted in the record. If private records sought are not received pursuant to VA's request, the AOJ should so advise the Veteran, and also advise him that ultimately it is his responsibility to ensure that private treatment records are received. 3. Thereafter, the AOJ should also arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of his right knee disability. The examiner should assume for the purpose of examination that the history the Veteran provided on June 1990 California Air National Guard examination is credible. The Veteran's entire record must be reviewed by the examiner in conjunction with the examination. After review of the record and interview and examination of the Veteran, the examiner should provide opinions that respond to the following: a. Please identify (by diagnosis) each right knee disability found. b. What is the most likely etiology for each right knee disability diagnosed? Specifically, is it at least as likely as not (a 50% or better probability) that the disability was incurred in service? The examiner must explain the rationale for all opinions, with citation to supporting clinical data, as indicated. 4. The AOJ should then review the entire record and readjudicate the claims on appeal. If either remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his attorney opportunity to respond, and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters 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 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) (2015).