Citation Nr: 1752902 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-13 952 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a right knee disorder to include painful scar. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Nguyen, Associate Counsel INTRODUCTION The Veteran served in the Army National Guard and has a verified period of active duty from May 2004 to August 2004. This matter comes before the Board of Veteran's Appeals Board (Board) on appeal from a January 2012 rating decision from the Regional Office in Columbia, South Carolina (RO), Department of Veterans Affairs (VA). The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in August 2016. A transcript of that hearing has been associated with the claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) claims file. LCM contains documents that are either duplicative of the evidence in VBMS or not relevant to the issue on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). 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 claim and that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). First, remand is warranted to attempt to obtain verification of the dates of the Veteran's active duty, active duty for training (ACDUTRA), and inactive duty for training (INACDUTRA). VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records. 38 C.F.R. § 3.159(c)(2). The Veteran's DD-214 and Army National Guard Retirement Points History Statement indicated that the Veteran had periods of active duty service and inactive duty service between 2003 and 2010. However, the record does not clearly document the exact dates of the Veteran's period of active duty, ACDUTRA, and INACDUTR). This must be verified prior to a determination of service connection. Second, remand is required to obtain private medical records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). This includes making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159(c)(1). The Veteran has consistently reported that he injured his knee in service when he was working underneath a vehicle to exchange a part when the dry shaft of the vehicle fell out of the vehicle and hit his knee. See August 2016 Hearing Transcript, pg. 4; January 2014 DRO Hearing Transcript, pg. 4; January 2011 Notice of Disagreement; Statement of Medical Examination and Duty Status, August 31, 2010. The Veteran testified at both the January 2014 and August 2016 hearings that he sought medical attention immediately after the accident occurred, and that he was treated on-site in the motor pool since the weather conditions at the time prevented him from going to a hospital. The Veteran further testified that he immediately went to a hospital to get treatment for his knee upon getting back to the states from Germany, and has been receiving uninterrupted treatment from a private physician. See August 2016 Hearing Transcript, pg. 7. The Veteran reported that he has been diagnosed with a knee strain, has been undergoing physical therapy, and is wearing a knee brace. The claims file does not contain comprehensive private medical records or other evidence of treatment as described by the Veteran. There is also no evidence in the file that the RO has attempted to secure these outstanding records. On remand, additional development is necessary to ensure that the Veteran is afforded the opportunity to identify all relevant private treatment providers. Third, remand is also required for an adequate VA examination. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A March 2011 VA examination was conducted. The VA examiner diagnosed chronic strain of the right knee. X-rays were negative. The examiner did not provide an etiological opinion. In a May 2011 addendum report, the same VA examiner again failed to provide an etiological opinion. An August 2011 examination was then conducted, which again failed to include an etiological opinion. In a November 2011 VA addendum report, the examiner found that the Veteran's mild degenerative joint disease was not related to a blow to the knee. A December 2011 VA addendum report, also noted the conclusion of the examiner that the right knee disorder was not caused by a direct or indirect hit to the knee. No supporting explanation was provided. Furthermore, the examiners did not address relevant medical evidence of record. Remand is thus required. Accordingly, the case is REMANDED for the following actions: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. Contact all appropriate sources in order to verify the specific dates of any active duty, ACDUTRA, and INACDUTRA service between January 2003 to December 2010. Document for the claims file what repositories were contacted and why. If necessary, the Veteran should be requested to provide any assistance in obtaining this clarifying information. All verified dates of service and all responses received should be documented in the claims file. Any outstanding service personnel records (SPRs) and service treatment records (STRs) should also be obtained and associated with the claims file. Records concerning service merely denoting the amount of points he obtained, including cumulatively, are not helpful in this regard insofar as determining exactly when the Veteran was on ACDUTRA and INACDUTRA. As these records are in the custody of a Federal department or agency, the attempts to obtain them are governed by 38 C.F.R. §3.159(c)(2). The AOJ, therefore, must make as many attempts for these records as are necessary to comply with this VA regulation and document these attempts in a memo to the file if such records are determined to be unavailable. Appropriately notify the Veteran and his representative if unable to obtain these records. 38 C.F.R. §3.159(e)(1). 4. After any additional records are associated with the claims file and verification of the Veteran's service dates has been exhausted, schedule the Veteran for a VA examination to assist in determining the nature and etiology of any right knee disorder, to include painful scar. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must elicit from the Veteran a full history and/or description of his active service. First, the examiner must determine each of the Veteran's right knee disorders. If right knee strain, patellar chondromalacia, and/or degenerative joint disease are not diagnosed, please address the prior opinions of record and explain why no such current diagnosis is warranted. Second, the examiner must opine whether each diagnosed right knee disorder at least as likely as not (50 percent or greater probability) had onset in, or is otherwise related to active service. The examiner must address the following: 1) the 2009 medical record noting a diagnosis of patellar chondromalacia as an injury incurred in the line of duty; 2) the September 2010 medical record noting prescription of a hinged knee brace; 3) an August 2010 x-ray report indicating no abnormality and noting the reason for the order was history of an old injury one year prior; 3) a March 2012 private medical record noting right knee pain, recurrent, without old military injury, probably chondromalacia; 4) the March, May, August, November, and December 2011 VA examination reports and addendum opinions; and 5) the Veteran's description of the right knee injury. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. Ensure compliance with the directives of this remand. If a report is deficient in any manner, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).