Citation Nr: 1802364 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-45 923 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. D. Bruce, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1950 to May 1953, to include service in Korea. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND While further delay is regrettable, the Board finds additional development is necessary before a decision may be rendered in the issue on appeal. Primarily, the Board notes that the record reflects that the Veteran receives monetary benefits from the Social Security Administration (SSA), although it is unclear whether such benefits are disability-related. The Board is aware that it need not obtain SSA records prior to determining that there is no reasonable possibility that such are relevant to the Veteran's claims for VA compensation. See Golz v. Shinseki, 590 F.3d 1317, 1320-1321 (Fed. Cir. 2010). However, that possibility cannot be excluded under the circumstances presented here. As such, the AOJ should request the Veteran's SSA records. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017); see Hyatt v. Nicholson, 21 Vet. App. 390 (2007) ("In the context of the duty to assist in obtaining records, the relevance of the documents cannot be known with certainty before they are obtained."). Furthermore, the record does not currently reflect that the Veteran has had a left knee disability during the pendency of the appeal, although he sought private treatment for left knee issues approximately five years prior to the initiation of his claim. In that regard, however, the Board notes that the record contains a VA treatment record from one occasion in February 2003, but it is unclear whether the Veteran has continued to receive VA or other treatment related to his knee. Accordingly, upon remand, any relevant VA treatment records should be obtained and added to the record, and the Veteran should be again provided with the opportunity to submit any additional relevant treatment records demonstrating a current left knee disability. Finally, the Board notes that no VA opinion has been obtained due to the lack of evidence of a current disability. As such, in order to avoid further delay, the Board finds that if, and only if, any new evidence added to the file upon remand demonstrates that the Veteran has or had a left knee disability at any point during the pendency of the appeal, to include signs or symptoms of a left knee disability, a VA opinion and, if necessary, examination should be obtained. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Request from the SSA the records pertinent to any claim by the Veteran for disability benefits as well as the medical records relied upon to decide the claim. If the records do not exist or are not available, the Veteran should be notified and the claims file annotated as such. 2. Ask the Veteran to identify all outstanding treatment records relevant to the claim for entitlement to service connection for a left knee disability. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 3. If, and only if, evidence added to the claims file suggests that the Veteran has or had a left knee disability during the pendency of the appeal, to include signs or symptoms of a disability, send the claims file to the a VA examiner for an opinion regarding the Veteran's left knee disability. If an examination is deemed necessary to respond to the request, one should be scheduled. Following review of the claims file, and, if necessary, examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current left knee disability arose in service or is otherwise related to service. The examiner should be reminded that the Veteran's service treatment records have been deemed to be fire-related and, as such, may not be complete, although a September 8, 2016 Report of Contact reflects the Veteran's report that he did not seek treatment for the left knee during service. The examiner should explain the reasoning for any opinion provided. 4. After completing the requested actions, and any additional actions deemed warranted, the AOJ should readjudicate the claim on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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).