Citation Nr: 18150187 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 16-32 050 DATE: November 15, 2018 REMANDED Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Appellant had active service with the Army from February 1996 to June 1996 for Army Reserve basic training. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Appellant alleges that her right knee condition, diagnosed as medial and lateral meniscus tear with medial and lateral chondromalacia, is service-connected. The record does not show that a VA examination has been conducted or that a VA medical opinion has been provided. There is also an indication that further efforts must be made to obtain outstanding records that have not yet been associated with the file. 1. Medical Opinion In disability compensation claims, the Secretary must provide a VA medical opinion when (1) there is competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability (2) the evidence establishes that the veteran suffered an event, injury, or disease in service… and (3) evidence indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). The Appellant has asserted a link between her current right knee condition and a fall that took place during active service. Given the Appellant’s assertion, the current diagnosis of record, and the medical evidence, the Board finds that VA’s duty to provide an examination and obtain a medical opinion has been triggered. The record reflects that there is currently a factual dispute regarding whether the left or right knee was injured in service, but this factual dispute alone does not excuse VA from providing an opinion for the claimed disability. 2. Records VA is required to assist in the process of obtaining records in the custody of a Federal department or agency and must make attempts to obtain these records until it is determined that the records either do not exist or that further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). If unable to obtain records, VA must provide notice of its inability to obtain them. 38 C.F.R. § 3.159(e). The Appellant has asserted that there are several service records that she has not been successful in obtaining and the record indicates the possibility that some records have not been associated with the file. In February 2015, the Appellant submitted a formal request for medical records related to treatment received while on active duty. Also in February 2015, the Appellant submitted a notice of disagreement in which she indicated that she had requested, but had not yet received, service treatment records. She also asserted that the information used to deny her claim was inaccurate due to outstanding service and private medical records not being associated with the file. In June 2016, the Appellant submitted a VA Form 9 in which she indicated that she still had not received the service-treatment records she had requested. There is no indication that VA provided any response to these requests or that VA sought the records on behalf of the Appellant. In addition, the Appellant’s statements indicate the possibility that there are additional service records not associated with the file. In both the notice of disagreement and VA Form 9, the Appellant claims that her knee condition required the use of crutches and that she received a low-bunk pass and a pass to not walk in formation. There are no documents in the record related to these assertions. There is also no indication the RO made an attempt to obtain such documents. The DD-214 also indicates there may be additional records not yet associated with the file. The document states “DD Form 215 will be issued to provide missing information.” The file does not contain a DD-215 or any record that the RO attempted to obtain it. The matter is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding service records, VA records, and private treatment records and associate them with the claims file. Attention is directed at the Appellant’s contentions that not all service records have been obtained. These include, but are not limited to, documentation that crutches were used during active service and that passes for a low bunk and to not walk in formation were issued in relation to the treatment of her in-service knee injury. The AOJ is asked to obtain records from all appropriate sources. The AOJ must show that efforts have been made to obtain these documents and if unsuccessful, a notice that the records cannot be obtained or do not exist must be provided pursuant to 38 C.F.R. § 3.159(e). In addition, the DD-214 indicates that “a DD215 will be issued to provide missing information.” There is no record that this document has been associated with the file or that efforts to obtain it have been unsuccessful. As such, the RO must also show that efforts have been made to obtain this document and if unsuccessful, a notice that the record cannot be obtained or does not exist must be provided pursuant to 38 C.F.R. § 3.159(e). 2. Forward the Veteran’s claims file to an appropriate examiner to provide an opinion regarding the Appellant’s right knee condition. The need for the Appellant to be present for a physical exam is left to the discretion of the medical professional offering the opinion. Exclusively for the purpose of obtaining a medical opinion, presume the Appellant’s contention that the documented in-service knee injury was to her right knee rather than her left knee as service treatment records currently indicate. The examiner should respond to the following: a) Provide an opinion as to whether it is as least as likely as not (50 percent or greater probability) that the Appellant’s right knee disability is etiologically related to, or had its onset during, the Appellant’s active military service. Review of the entire file is required, but attention is directed to the STR from February 1996 in which the Appellant was treated for a knee injury. Attention is also directed to the private treatment records, associated with the file in July 2016 and included records for diagnosis and treatment of knee conditions in 2013, 2014, and 2015. A complete rationale for the opinion should be provided. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals J. Jack, Law Clerk Department of Veterans Affairs