Citation Nr: 1807466 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-12 579 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1981 to October 1984, with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) from December 11, 1999 to April 19, 2002. The Veteran also has multiple verified periods of ACDUTRA and INACDUTRA spanning a long career in the Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied service connection for a left knee disability. A Board hearing was held in October 2016. A transcript is of record. The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part. REMAND The Board regrets the additional delay, but finds that further development is necessary, and the Veteran's claim must be remanded. The Veteran filed his service connection claim in April 2011. See April 2011 VA Form 21-526. He claims that he sustained an injury to his left knee during a field training exercise around 1999 at "Fort Hunter Liggett." See October 2016 Board hearing transcript. At least three witnesses state that they saw the Veteran limping after his field training exercise. See, e.g., November 2016 R.L. statement. The Veteran's military personnel record shows the Veteran had active training at Fort Hunter Liggett from December 11, 1999 to April 19, 2002. During this time, he had several periods of ACDUTRA and INACDUTRA. Further, the Veteran stated he receives medical treatment for his left knee condition through VA. See October 2016 Board hearing transcript. The evidentiary record does not contain any VA medical treatment records. As such, the Board notes that there are identified, outstanding treatment records that should be obtained. See Sullivan v. McDonald, 815 F.3d 786, 793 (2016) (holding that 38 C.F.R. §3.159(c)(3) extends the VA's duty to assist in obtaining sufficiently identified VA medical records or records of examination or treatment at non-VA facilities by VA, regardless of their relevance). On remand, the AOJ should obtain the missing records and associate them with the claims file. Likewise, the Veteran identified outstanding private treatment records at his Board hearing. On remand, the AOJ should send the Veteran a VA Form 21-4142, Authorization and Consent to Release Information to VA, for the release of any pertinent private records. Finally, as stated above, the Veteran has attested that his left knee disability emanated from an injury sustained while on ACDUTRA. Consistent with VA's duty to assist, VA must provide a medical examination when there is evidence of (1) a current disability; (2) an in-service injury; (3) some indication that the claimed disability may be associated with the established injury; and (4) insufficient competent evidence of record for VA to make a decision. See McClendon v. Nicholson, 20 Vet. App. 79, 84 (2006); see also 38 U.S.C. § 5103A(d)(2) (2012); 38 C.F.R. § 3.159(c)(4)(i) (2017). The third prong, which requires evidence that the claimed disability or symptoms "may be" associated with the established event, has a low evidentiary threshold. See 20 Vet. App. at 83. Here, the low evidentiary standard is met, as the Veteran has submitted witness statements attesting to his left condition before and after his injury. Therefore, a VA examination is necessary to determine if the Veteran's left knee disability is related or attributable to his time on active duty or in the line of duty during periods of ACDUTRA or INACDUTRA. See Id. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records relevant to the Veteran's claimed left knee disability, to include treatment records from Salem Clinic. All obtained records should be associated with the evidentiary record. The AOJ must perform all necessary follow-up indicated. If the records are not available, or a negative response is received, the AOJ should make a formal finding of unavailability, advise the Veteran and his representative of the status of his records, and give the Veteran the opportunity to obtain the records on his own. 2. Concurrent with the above, request that the Veteran complete an appropriate number of VA Forms 21-4142, Authorization and Consent to Release Information to VA, for any outstanding private treatment records. Such records include, but are not limited to, records from a "specialist" in Portland alluded to at the October 2016 Board hearing. Make two attempts to obtain any identified private treatment records and inform the Veteran of any attempts to locate any records that could not be obtained. 3. After completing the above, and after any records obtained have been associated with the evidentiary record, schedule the Veteran for an examination to determine the nature and etiology of his left knee disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, the VA examiner should identify all left knee disabilities present. For each identified left knee disability, the examiner is asked to respond to the following inquiry: Is it as likely as not that the Veteran's left knee disability was incurred in, or is otherwise related, to his periods of ACDUTRA/INACDUTRA, to include this claimed left knee injury at Ft. Hunter Liggett? In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. Further, the examiner is to discuss the Veteran's claimed injury sustained during training. This includes a discussion of the Veteran's continuity of symptomatology since his alleged training injury. Specifically, the examiner is to discuss witness statements from R.L., L.L., K.C., P.B., and L.C. attesting to the Veteran limping and complaining of left knee pain during physical training after his injury sustained during ACDUTRA. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. After the above development has been completed, and after undertaking any additional evidence deemed necessary, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ DONNIE R. HACHEY 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).