Citation Nr: 1758095 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 13-14 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a right knee disorder. REPRESENTATION Veteran represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Wulff, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2001 to July 2006. He also had additional service in the Missouri Army National Guard and the United States Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2016. A transcript of that proceeding is of record. In September 2016, the Board remanded the case for further development. The case has since been returned to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In September 2016, the Board directed the AOJ to contact the appropriate facilities to obtain treatment records from the General Leonard Wood Army Hospital dated from April 2009 to the present. A July 2017 response from the General Leonard Wood Community Hospital indicated that all available records from that facility were submitted; however, the records were limited to an April 2009 treatment report. Notably, the July 2017 response also directed the Appeals Management Center (AMC) to contact the National Personnel Records Center (NPRC) or the Records Management Center (RMC). A February 2017 Personnel Information Exchange System (PIES) response from the NPRC indicated that clinical records from Fort Leonard Wood dated in 2009 had not been retired to that location. However, the AMC limited its request to inpatient clinical records dated from March 2009 to May 2009. Therefore, on remand, the AOJ should ensure that all proper development has been accomplished to obtain any outstanding treatment records from the General Leonard Wood Army Community Hospital. Stegall v. West, 11 Vet. App. 268, 271(1998). In addition, the AMC obtained information regarding the Veteran's service from the VA/Department of Defense Identity Repository (VADIR), which showed that he served in the Missouri Army National Guard from August 2006 to March 2013 and the Army Reserve from March 2013 to August 2013. However, the AMC did not specifically verify whether the Veteran had any periods of active duty, Active Duty for Training (ACDUTRA), and Inactive Duty for Training (INACDUTRA) during the periods specified in the September 2016 remand. Stegall v. West, 11 Vet. App. 268, 271(1998). The Board also notes that the AMC obtained VA medical records dated from April 2009 to February 2013. However, there is no indication that the AMC attempted to obtain VA medical records dated after February 2013, as directed in the September 2016 remand. Therefore, on remand, the AOJ should attempt to obtain any outstanding VA medical records. Stegall v. West, 11 Vet. App. 268, 271(1998). Furthermore, the record reflects that the Veteran was scheduled for VA examinations in January 2017 and May 2017; however, he failed to report for those examinations. See February 2017 and June 2017 VA examination requests. Nevertheless, the claims file does not include a letter notifying the Veteran of the date, time, and location of the scheduled examination. In September 2016, the Board specifically instructed the AOJ that documentation showing that such notice was sent to the Veteran's last known address should be associated with the VBMS file. The Board is mindful of the provisions of 38 C.F.R. § 3.655 regarding action to be taken when a veteran fails to report for a scheduled VA examination "when entitlement to a benefit cannot be established" without the scheduled examination. 38 C.F.R. §§ 3.655 (a), (b) (2017). In this case, however, it is unclear whether the Veteran was properly notified, and there is no published guidance establishing the presumption of regularity in such a situation. See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). Thus, the Board finds that the Veteran should be afforded another opportunity to appear for a VA examination in connection with his claim. Stegall v. West, 11 Vet. App. 268, 271(1998). Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a right knee disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records, to include any records dated from February 2013 to the present. 2. The AOJ should contact the appropriate facilities to obtain any additional treatment records from the General Leonard Wood Army Hospital dated from April 2009 to the present that pertain to treatment for a right knee disorder. (A July 2017 response from the General Leonard Wood Community Hospital indicated that all available records from that facility were submitted; however, the records were limited to an April 2009 treatment report. Notably, the July 2017 response also directed the AMC to contact NPRC or the RMC. A February 2017 PIES response from the NPRC indicated that clinical records from Fort Leonard Wood dated in 2009 had not been retired to that location. However, the AMC limited its request to inpatient clinical records dated from March 2009 to May 2009.) If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. 3. The AOJ should contact the appropriate entities to verify the dates of any periods of active duty, ACDUTRA, and INACDUTRA that the Veteran had in the Missouri Army National Guard in March 2009, April 2009, December 2011, January 2012, March 2012, and June 2012. The AOJ should also verify whether the period of service was "full-time duty" ordered under the provisions of 32 U.S.C. § 316, 502, 503, 504, or 505, or whether he was ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401. The AOJ should prepare a summary of such dates, to include whether such service was federalized. 4. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any right knee disorder that may be present. To the extent possible, the AOJ should provide the examiner with a list of dates of verified active service for VA purposes. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a current right knee disorder that manifested during a period of active duty, active duty for training, or inactive duty for training, or is otherwise causally or etiologically related to such a period of service, to include any injury or symptomatology therein. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. The AOJ should notify the Veteran that it is his responsibility to report for any scheduled examination, 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 which shows that notice scheduling the examination was sent to the last known address should be associated with the VBMS file. It should also be noted whether any notice that was sent was returned as undeliverable. 6. The AOJ should review the examination report to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 7. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the claim should be readjudicated. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further 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). _________________________________________________ J.W. ZISSIMOS 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).