Citation Nr: 18154758 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 17-11 310 DATE: December 3, 2018 REMANDED Entitlement to service connection for a left knee injury is remanded. Entitlement to service connection for a left foot injury is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1954 to July 1957. The case is before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In August 2018, the Veteran testified at a Video Conference in San Antonio, Texas, before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the electronic claims record. Entitlement to service connection for left knee and left foot injuries are remanded. Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103; 38 C.F.R. § 3.159. The evidentiary record shows that the Veteran has been diagnosed with left knee osteoarthritis and left foot metatarsalgia. See March 2015 and April 2017 private medical examinations. The Veteran contends his current left knee and foot disabilities are the result of a three to four story fall from a training tower during his service in 1956. See August 2018 hearing transcript. According to the Veteran, he fell on his left knee, bending his left foot toes as well, resulting in his current disabilities. Id. The Board observes the Veteran’s service treatment records (STRs) for his period of active service from 1954 and 1957 are not on file and were presumably destroyed in a fire at the NPRC in St. Louis, Missouri, in 1973. As such, the Veteran’s STRs are unavailable with the exception of his separation examination. VA has a heightened duty to assist the Veteran in developing his claim in light of the unavailable records. See O’Hare v. Derwinski, 1 Vet. App. 365 (1991). The legal standard, however, for proving the Veteran’s claim is not lowered but, rather, the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran is increased. See Russo v. Brown, 9 Vet. App. 46 (1996). Here, the Board notes that the Veteran has not been afforded a VA examination in order to address the nature and etiology of his left knee and left foot disabilities. In this regard, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. The record of evidence includes several private examinations related to the Veteran’s left knee and left foot disabilities. The Veteran’s private physicians indicated that the Veteran’s left knee and left foot disabilities are related to his military service. See March 2015 and April 2017 private medical examinations. However, the private physicians did not review the Veteran’s claims file prior to their conclusions and based their nexus opinions on the Veteran’s lay statements. The Board cannot make a decision based on those opinions because they are inadequate. Therefore, a new examination should be conducted with the examiner providing an opinion on whether the Veteran’s left knee and left foot disabilities are related to his service. After considering the Veteran’s assertion of a relationship between his current left knee osteoarthritis and left foot metatarsalgia and his active service, and given VA’s heightened duty to assist in this case, the Board finds that a VA medical opinion is warranted to address the likelihood of an etiological relationship between an event or disease in service and the left knee and left foot disabilities. See, e.g., McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A (d)(2) (2012), 38 C.F.R. § 3.159 (c)(4)(i) (2017). The matters are REMANDED for the following action: 1. Contact the Veteran and his representative and request that they provide or identify and authorize the recovery of any records of treatment for his left knee osteoarthritis and left foot metatarsalgia. If obtained, associate these treatment records with the electronic claims file. All records/responses received must be associated with the electronic claims file. 2. Obtain and associate any updated VA treatment records with the claims file. All records/responses received must be associated with the electronic claims file. 3. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of his left knee osteoarthritis and left foot metatarsalgia. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this review of the evidence of record occurred. Upon determination of diagnostic impressions, if any, the examiner is asked to respond to the following inquiry: (a.) It is at least as likely as not (i.e., probability of 50 percent or greater) that any acquired left knee and left foot disabilities had its onset during active service or is related to any in-service disease, event, or injury. The examiner must provide a complete rationale for all opinions expressed and conclusions reached (Continued on the next page)   4. After completing the above, and any other development as many be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be re-adjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. C. Slaughter, Associate Counsel