Citation Nr: 21066522 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 18-26 687 DATE: November 1, 2021 REMANDED Service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1954 to December 1955. This matter comes before the Board of Veterans' Appeals (Board) from a May 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at an October 2021 Board hearing before the undersigned Veterans Law Judge (VLJ). This case is being processed under the Board's "One Touch" program to expedite resolution of the appeal, and a transcript from the hearing will be associated with the file at a later date. At the October 2021 Board hearing, the Veteran indicated that he received treatment at VA facilities, including Fayetteville VAMC as early as 1980 and Kansas City VAMC as early as 1990. The earliest VA treatment records associated with the claims file are from July 2006 for Fayetteville VAMC and July 1999 for Kansas City VAMC. Any VA treatment records are within VA's constructive possession and are considered potentially relevant to the claims on appeal; therefore, remand is necessary to obtain these records. Additionally, the Veteran was afforded a VA examination to assess the nature and etiology of his right knee disability in March 2017. While the examiner provided a detailed review of the medical evidence of record, the examiner did not address the Veteran's reports related to continuity of symptomatology since service, including his February 1999 report of right knee problems and his January 2017 report that "my right knee has bothered me since I got out." See February 1999 Statement in Support of Claim; January 2017 Correspondence. Separately, the examiner was not given the opportunity to consider the potentially relevant VA and private treatment records that are not currently associated with the claims file. As such, the Board finds that a new VA examination is warranted to ensure the Veteran is afforded an adequate examination based on an accurate medical history and full consideration of his lay statements. The Board notes that the Veteran requested a copy of his claims file in July 2020. See July 2020 Statement in Support of Claim; July 2020 Third Party Correspondence. To date, VA has not acknowledged the request, and there is no indication in the claims file that VA has fulfilled this request. Because this matter must be remanded for additional development, there is no prejudice to the Veteran in referring his request to the RO for appropriate action. The matters are REMANDED for the following action: 1. Review the Veteran's July 2020 requests and provide him with a copy of his claims file. Associate the subsequent Privacy Act notification letter with the claims file. 2. Obtain and associate with the claims file all VA treatment records from August 2021 to present. 3. Obtain and associate with the claims file all paper records from Fayetteville VAMC prior to 2006. Document all searches of archived/retired paper records, including any negative responses. If the records do not exist or further attempts to obtain the records would be futile, make a formal finding of unavailability, and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 4. Obtain and associate with the claims file all treatment records from Kansas City VAMC from 1990 to present, which may involve searching paper records. Document all searches of archived/retired paper records, including any negative responses. If the records do not exist or further attempts to obtain the records would be futile, make a formal finding of unavailability, and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 5. Send the Veteran a letter requesting that he provide authorization to enable VA to obtain records of his treatment by Dr. Trimble, Dr. Nelson, and Mercy Hospital. If reasonable efforts to obtain the records are unsuccessful, notify the Veteran in accordance with 38 C.F.R. § 3.159(e)(1) and provide him with a reasonable amount of time to personally submit the records. 6. DO NOT SCHEDULE THE FOLLOWING until the above records have been obtained, to the extent possible. 7. Schedule the Veteran for a new VA examination to assess the nature and etiology of his right knee disability. After a complete review of the claims file, including the Veteran's lay statements and any recently obtained treatment records, the examiner should respond to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's right knee disability began during or is otherwise related to service? In making this opinion, the examiner must consider and specifically address the Veteran's lay statements regarding continuity of right knee symptomatology since service, including those made at the October 2021 Board hearing. All opinions must be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is required. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tierno 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.