Citation Nr: 21067038 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 14-21 539 DATE: November 3, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a left knee disability is reopened. REMANDED Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. A November 2009 rating decision denied service connection for a left knee disability. The Veteran initiated, but did not perfect, an appeal or submit new and material evidence within the requisite time frame. Thus, the November 2009 rating decision became final. 2. The evidence added to the record since the November 2009 rating decision raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 19.52. REASONS FOR REMAND The Veteran served on active duty from August 1945 to October 1945. The Veteran died in August 2016. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's request to reopen his claim for service connection for a left knee disability. In his May 2014 substantive appeal, the Veteran requested to present sworn testimony before a Veterans Law Judge. In September 2021, the Appellant was issued notice that a hearing was scheduled for October 15, 2021 at the Atlanta RO. Included with this notice was comprehensive information regarding the rules governing rescheduling of the hearing and failure to report to the scheduled hearing. The Appellant's representative was copied in the correspondence. The Appellant failed to appear to the scheduled hearing. Neither the Appellant, nor her representative, have contacted VA regarding rescheduling this hearing; the record does not demonstrate good cause to reschedule. If an appellant fails to appear for a scheduled hearing and a request for postponement has not been received, the case will proceed as if the hearing request had been withdrawn. 38 C.F.R. § 20.702(d). A request for a hearing will not be granted unless the failure to appear was with good cause and under such circumstances that a request for postponement could not have been submitted. A request for a new hearing must be submitted not more than 15 days following the original hearing date. Id. Neither the Appellant, nor her representative, have requested a new hearing. Accordingly, the hearing request is deemed withdrawn and the Board may proceed with appellate review. Id. The Veteran had asserted that his arthritis in his left knee was etiologically related to an injury in service. See May 2014 Form 9. Specifically, he suffered an injury in service while working on a machine that was subsequently turned on, injuring several soldiers. See November 2009 Veteran's statement. As a result of this injury, the Veteran was transported to a field house for treatment. Id. He was subsequently discharged from service due to his injury. Id. After service, the Veteran explained that his symptoms progressed, requiring surgery in 1952 and 1980. Id. These surgeries occurred within VA medical centers. Id. Unfortunately, these medical records are not part of the evidentiary record, nor does it appear that attempts to acquire the same have been initiated. As such, remand is required to acquire and associate these missing VA treatment records. Moreover, no medical opinion has been requested to determine whether the Veteran's arthritis was etiologically related to service. An opinion is required on remand. The Board notes that the Veteran's service department records are "fire-related," or otherwise unavailable. See August 2009 VA memorandum. In instances where a claimant's service department records are unavailable, the Board is under a heightened obligation to explain its findings and to carefully consider whether the evidence is in equipoise, and if so, to resolve the matter in the claimant's favor. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The matter is REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his left knee disability that are not already of record, to include VAMC records from 1952 and 1980 of the Veteran's alleged left knee surgeries. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Appellant and her representative should be notified, and the record clearly documented. 2. After the above development is completed, obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran's left knee disability. The evidentiary record, including a copy of this remand, must be made available and reviewed by the clinician. The opinion should include a notation that this record review took place. After the record review, the clinician should identify all left knee disabilities present. For each identified disability, the clinician is asked to respond to the following inquiry: Is it at least as likely as not that the Veteran's left knee disability was incurred in, or is otherwise related to, his time on active service, to include his alleged injury therein? The reviewing clinician should consider the alleged injury described in the Veteran's November 2009 statement. The reviewing clinician should also consider the Veteran's statement that he has had issues with his left knee since service. See November 2009 Veteran's statement (where Veteran explains his left knee bothered him from service separation to his 1952 surgery) and May 2014 Form 9 (where Veteran explains his left knee has bothered him since 1952). In rendering this opinion, the reviewing clinician 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 reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician 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. 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 reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician 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. (Continued on the next page) 3. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Appellant and her representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Strickland 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.