Citation Nr: 21013188 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 12-25 601 DATE: March 8, 2021 REMANDED Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. REASONS FOR REMAND The Veteran had a period of active service from October 1965 to November 1968. At the outset, it is noted that the Veterans Law Judge (VLJ) who held a hearing in this case is no longer at the Board to make a final decision on this matter. A transcript of the hearing is on file and will be considered in any final decision reached. This Remand in not a final decision. If the Veteran desires another hearing, he should so indicate during Remand development. If a hearing is not specifically requested, it will be determined that a second hearing request has been waived. In May 2019, the Board of Veterans’ Appeals (Board) decided the issues addressed in this remand. The Veteran appealed. In May 2019 the United States Court of Appeals for Veterans Claims (the Court) granted a joint motion for remand (JMFR), vacating the Boards May 2019 decision and remanded the following issues, service connection for a left and right knee disorder in accordance with the terms of the JMFR. The Court determined that the Board erred when it did not obtain the Veteran’s VA medical records prior to December 2009. Specifically, the court determined that the Board erred when it did not obtain the Veteran’s VA medical records from Biloxi, Mississippi between 1994 and 2004 Moreover, the Board did not provide findings that the records were unavailable or do not exist. In December 2018, the Board remanded the Veteran’s claims for additional development. There was not substantial compliance with the Boards remand directive. The Board most recently remanded the Veteran’s claims for additional development in October 2020. Specifically, the Board requested that the regional office (RO) first obtain the Veteran’s VA medical records prior to December 2009. The Board also requested that the RO obtain the Veteran’s VA medical records from Biloxi, Mississippi between 1994 and 2004. Lastly, the Board requested that the February 2020 examiner review the collected records and provide an addendum opinion. Review of the records reveals a single request for records dating from 1994 was made. The apparent response is that records were mailed in May 2017. Review of the claims folder does reveal that a number of Capri and other records were received in May 2017. They appear to be dated, however, primarily from 2009 and 2010. Records dating before 2009 still do not appear to have been associated with the claims file, nor is it clear that they do not exist. Thus, additional development must be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, in order to assure the Veteran all due process and not prejudice consideration of the claims, the Board remands the Veteran’s claims to the Agency or Original Jurisdiction (AOJ) to comply with remand directive. 1. Entitlement to service connection for a right knee disorder is remanded. 2. Entitlement to service connection for a left knee disorder is remanded. As noted above, a remand is necessary to obtain the Veteran’s VA medical records prior to December 2009. Specifically, an effort should be made to collect any VA medical records from Biloxi, Mississippi between 1994 and 2004. If they have been archived, they should be obtained. If no records are found, or if they are determined to be unavailable, that should be certified by a Biloxi records keeping official, and a formal finding of unavailability should be made by the Originating Agency. Thereafter, if records are obtained, they should be forwarded to the the February 2020 VA examiner, or similar examiner, for an addendum opinion concerning the cause of the Veteran’s left and right knee disorders. The matters are REMANDED for the following action: 1. As noted above, the VLJ who conducted the prior hearing is no longer at the Board. If the Veteran or his representative desire an additional hearing, they should so indicate during remand development. Failure to affirmatively request a hearing will be taken as a waiver, and the matter ultimately decided on the evidence of record, including the transcript of the prior hearing. 2. A specific effort must be made by the AOJ to collect the Veteran’s VA and private treatment records prior to December 2009. Specifically, an effort should be made to collect the Veteran’s VA medical records from Biloxi, Mississippi between 1994 and 2004. If the records are archived, they should be obtained. If they are unavailable, a certifying records official at the Biloxi Medical Center should so certify. If the AOJ is not able to obtain the sought records, documentation should be added to the record identifying all efforts taken and whether the records are unavailable or nonexistent and a formal finding of that fact should be entered into the record. 3. If additional pertinent records are obtained, return the Veteran’s claims file to the examiner who conducted the February 2020 VA examination (or a similarly qualified examiner) for a supplemental opinion to be provided. After a thorough review of the medical history the examiner is requested to prepare a detailed opinion which answers the following: Taking into consideration the Veteran’s STR’s, lay statements, and post service VA and private treatment records, is it as likely as not (that is a probability of 50 percent or greater) that the onset of the Veteran’s right and left knee disorder is related to an in-service event or occurrence? If the onset of a right or left knee disorder is not found to be related to the Veteran’s time in-service, that should be specifically set out with the factors considered in making that determination. Please provide a complete rationale for all opinions entered and review the entire record including lay statements. If an examiner cannot provide any of the requested opinions, he/she must affirm that all procurable and assembled data was fully considered, and a detailed rationale must be provided for why an opinion cannot be rendered. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Harris, Michael E. 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.