Citation Nr: 21002876 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-63 453 DATE: January 19, 2021 REMANDED Service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from June 2007 to June 2014. This matter comes to the Board on appeal from a January 2015 Regional Office (RO) decision. In January 2020, the Veteran testified at a hearing before a Veterans Law Judge who has since retired. In October 2020 the Board sent a letter to the Veteran offering the opportunity for a new hearing but no response was received. The transcript of the hearing is in the claims file and has been considered in conjunction with this decision. 1.) Entitlement to service connection for a right knee disability is remanded. The Board finds that prior to further appellate review of the claim, a remand is required to obtain an examination and opinion to address the etiology of the Veteran’s right knee disability, and to obtain outstanding VA and private treatment records. The Board will discuss each reason for remand separately below. i) VA examination Under 38 U.S.C. § 5103A (d), VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that an event, injury or disease occurred in service; (3) an indication that the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 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. Id. Here, the record contains evidence that the Veteran has a current right knee disability. Specifically, a June 2017 VA treatment report contains a diagnosis of right knee patellofemoral syndrome (PFS). As such, the first element of McLendon is met. The Veteran maintains that he injured his right knee when he fell on a steel bar while loading cargo in Afghanistan in 2010 and that it has remained symptomatic since that time. Transcript (T.) at page (pg.) 15)). The Veteran’s service treatment records (STRs) reflect, in pertinent part, that he complained of knee pain and instability on numerous occasions. A diagnosis of right knee PFS was reported on a September 2014 Separation Health Assessment, performed just three (3) months after the Veteran was discharged from service in June 2014. (Parenthetically, the Board notes that a March 2014 service treatment record contains an assessment that the Veteran had osteoarthritis of the knees, left knee greater than the right knee; however, there was no x-ray confirmation of arthritis in either knee during service or thereafter). The Board finds that with the in-service complaints of bilateral knee pain and instability, and diagnosis of right knee PFS in September 2014, three (3) months after service discharge, the second element of McLendon is met. The Board notes that the record does not contain a competent medical opinion as to whether his current diagnosis of right knee PFS is related to military service. The Board finds that the record is sufficient to indicate that the Veteran’s right knee disability may be associated with service. As such, a VA examination is necessary to determine the nature and etiology of his claimed right knee disability. ii) Outstanding Private and VA treatment records In a March 2020 letter to VA, Dr. A. S. reported that the Veteran had received treatment at the University of Colorado since September 2019, and that his May 2020 appointment with an orthopedic surgeon at that facility had to be rescheduled secondary to the coronavirus pandemic. Thus, on remand, VA should undertake reasonable efforts to obtain the relevant private medical records. 38 C.F.R. § 3.159 (c)(1). Currently, the claims file does not contain records from the University of Colorado since September 2019. The Veteran receives VA medical treatment for the condition noted on appeal; therefore, any outstanding, relevant records should be procured. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The matters are REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant private medical records. Specifically request the treatment records from the University of Colorado, dated from September 2019 to the present. Subsequently, and after securing the proper authorizations where necessary, decide to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. The RO must make two (2) attempts to obtain any private record identified, unless the first attempt demonstrates that further attempts would be futile. If private records are identified, but not obtained, the RO must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain the records, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claim may be readjudicated. Obtain and associate with the claims file all outstanding records of VA treatment for the Veteran, dated from January 2019 to the present. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to address the etiology of the claimed right knee disability. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner is asked to provide an opinion as to the following question: (Continued on the next page)   Is it at least as likely as not (50 percent or greater probability) that any right knee disability began in service, was caused by service, or is otherwise related to service. The examiner is requested to comment on the Veteran’s contention that he injured his right knee after he hit it on a steel bar while loading cargo in Afghanistan in 2010 and that it had remained symptomatic since that time, as well as diagnoses of right knee PFS in September 2014 and June 2017. A complete rationale must accompany any conclusion reached. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carole Kammel, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.