Citation Nr: 21071348 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-07 510 DATE: November 30, 2021 REMANDED Entitlement to service connection for bilateral knee disabilities is REMANDED. REASONS FOR REMAND The Veteran served honorably in the United States Navy from May 1990 to January 2000. Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran's service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate assistance in developing his claim prior to final adjudication. Entitlement to service connection for bilateral knee disabilities is remanded. In March 2014, the Veteran submitted a VA Form 21-526EZ. Thereby, the Veteran initiated a claim for service connection for bilateral knee disabilities. Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) In January 2000, the Veteran's service treatment records (STRs) were associated with the claims file. The Board observes that, during the 1999 separation examination, the military provider noted the Veteran's report(s) of occasional bilateral knee swelling with activity. In December 2014, the Veteran underwent VA examinations, which addressed the nature and etiology of skin and eye disorders. Importantly, the Board observes that the claims file does not contain a VA examination report that addresses the nature and etiology of any current bilateral knee disabilities that are endured by the Veteran. In January 2017, the Veteran's treatment records from the Bronx VA Medical Center (VAMC) were associated with the claims file. After review, the Board observes that the records indicate that the Veteran was treated by an outside joint specialist, Dr. Maynard. In January 2017, the agency of original jurisdiction (AOJ) issued a supplemental statement of the case (SOC). Therein, the AOJ continued to deny the Veteran's claim for service connection for bilateral knee disabilities. Importantly, the AOJ relayed that, "(a)lthough VA records note that you were privately treated by Dr. Maynard from Hospital for Special Surgery, you have not submitted these records." In July 2021, the Veteran supplied sworn testimony to the undersigned Veterans' Law Judge (VLJ). The Veteran testified that he began to endure knee pain and swelling during U.S. Navy service in the 1990s. Importantly, the Veteran confirmed that he was trying to schedule an appointment with a physician, for the purpose of securing an opinion on the etiology of any currently endured bilateral knee disorders. In September 2021, the Veteran's treatment records from Palm Beach Sports Medicine were associated with the claims file. Therein, the provider addressed a currently assessed left knee disorder. The Board observes that additional medical records have been associated with the Veteran's electronic claims folder since the agency of original jurisdiction (AOJ) issued the Statement of the Case (SOC) on January 1, 2017. Since these records were added to the Veteran's claims file after issuance of the SOC, and it is clear that the AOJ did not review these records, a Supplemental Statement of the Case (SSOC) must be furnished to the Veteran and his representative. See 38 C.F.R. § 19.31. If the Board were to consider this evidence in the first instance, this potentially could be prejudicial because the Veteran, in effect, would "lose one bite of the apple," meaning the benefit of one level of judicial review. Cf., Bernard v. Brown, 4 Vet. App. 384 (1993). Thus, the Board concludes that the AOJ should have the opportunity to review the records from Palm Beach Sports Medicine and issue a SSOC. See 38 C.F.R. § 19.37 (b). The Board may not consider additional evidence not previously reviewed by the AOJ, unless a waiver of initial AOJ review is obtained from the Veteran. Disabled American Veterans, et. al. v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304 (c). The Veteran has not submitted a waiver of AOJ consideration of the new evidence received since issuance of the January 2017 SOC, and the AOJ has not issued an SSOC with consideration of the newly received evidence. On remand, the agency of original jurisdiction should issue a SSOC that considers all the evidence received since the January 2017 SOC. In reaching this conclusion, the Board observes that the Veteran filed his substantive appeal on February 6, 2017. For all substantive appeals received on or after February 2, 2013, if, either at the time or after the AOJ receives a substantive appeal, the claimant or the claimant's representative submits evidence to either the AOJ or the Board for consideration in connection with the issues on appeal, such evidence shall be subject to initial review by the Board unless the claimant or the claimant's representative requests in writing that the AOJ initially review such evidence. See Section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154 (amending 38 U.S.C. § 7105 by adding new paragraph (e)). However, as this evidence does not appear to have been submitted by either the Veteran or his accredited representative, the claim must be remanded for the AOJ for readjudication with consideration of the newly received evidence. The Board also observes that the Veteran's testimony and government treatment records indicate medical treatment of the knees by a Dr. Maynard. However, after review, the Board notes that no medical records generated by Dr. Maynard are associated with the claims file. As such, remand is required to obtain these records and associate them with the claims file before the Board can make a determination regarding the Veteran's outstanding service connection claim, as VA's duty to assist includes "obtaining sufficiently identified VA medical records or records of examination or treatment, regardless of their relevance." Sullivan v. McDonald, 815 F.3d 786, 790-93 (Fed. Cir. 2016). Finally, the Board observes that the Veteran has not undergone a VA examination that addresses the nature and etiology of any currently endured bilateral knee disorders. The Board notes that the Veteran's testimony indicates that he is attempting to secure a private medical examination and report that addresses etiology. However, review of the claims file does not indicate that a private or VA examination report has been generated that addresses etiology. Consequently, on remand the AOJ should schedule a VA examination of the Veteran's knees that addresses the nature and etiology of any currently endured bilateral knee disorder(s). Consequently, the matter is REMANDED to the agency of original jurisdiction (AOJ) for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA, Federal, or private health care providers. With the Veteran's assistance, obtain copies of any pertinent records and add them to the claims file. The AOJ must attempt to secure any pertinent medical records generated by Dr. Maynard. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159 (c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. Thereafter, the AOJ should schedule the Veteran for a VA examination to determine the nature and etiology of any currently endured bilateral knee disability. The claims file should be made available to, and be reviewed by, the examiner, and it should be confirmed that such records were reviewed. The examiner should provide a response to the following inquiry: For any current bilateral knee disability identified, indicate whether the disability is at least as likely as not (a 50 percent probability or greater) related to the Veteran's U.S. Navy service. An explanation for all opinions expressed must be provided. All opinions must take into account the Veteran's own history and contentions. 3. The AOJ must ensure that the examination report requested above is in compliance with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures at once. 4. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claim for service connection for a bilateral knee disability. If the benefit sought is not granted, the AOJ must then issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.