Citation Nr: 0003027 Decision Date: 02/07/00 Archive Date: 02/10/00 DOCKET NO. 98-17 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an increased rating for traumatic arthritis of the right knee, currently evaluated as 10 percent disabling. 2. Entitlement to an evaluation in excess of 10 percent for subluxation of the right knee. 3. Entitlement to service connection for arthritis of the hips. 4. Entitlement to service connection for arthritis of the lumbosacral spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Michael A. Holincheck, Associate Counsel INTRODUCTION The veteran served on active duty from February 1966 to February 1969, from March 1985 to March 1988 and from January 1991 to March 1991, with unverified service in the U. S. Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The veteran testified before the undersigned member of the Board at a Travel Board hearing held in October 1999. Evidence was received at the hearing for which a waiver of RO consideration was submitted. REMAND The veteran has served on several periods of active duty. However, the only service medical records (SMRs) associated with the claims file are from the March 1985 to March 1988 period of active duty. Further, the evidence of record indicates that the veteran is still serving as an active member of the Army Reserve. The SMRs for his first period of active duty, his third period of active duty and his entire period of service with the U. S. Army Reserve have not been obtained. A review of the claims file reveals that the RO was advised to seek the veteran's SMRs from his Reserve unit in October 1988. The claims file shows that several requests were made to the Army Reserve Personnel Center (ARPESCEN) with negative results. However, there is no indication that the veteran was ever contacted for information regarding his Reserve unit and an appropriate request made for the records. The VA has a duty to obtain the missing SMRs. The veteran testified at a Travel Board hearing in October 1999. He related that he had received additional VA treatment for his claimed disabilities. He also indicated that his service-connected right knee disabilities had worsened since his last VA examination in November 1998. Further, the veteran argued for consideration of service connection for his hip and back disabilities as secondary to his service-connected right knee disabilities under 38 C.F.R. § 3.310 (1999). The Board notes that the RO has not yet had the opportunity to consider service connection on a secondary basis under 38 C.F.R. § 3.310 or under Allen v. Brown, 7 Vet. App. 439 (1995). Based on the above, the Board finds that additional development is required prior to final determination of the issues on appeal. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request that he provide the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who may possess additional records pertinent to his claims. With any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran which are not currently of record. 2. The RO should also contact the veteran and request that he provide the appropriate information such as unit name and address and authorization so that his SMRs may be obtained from his Army Reserve unit. The veteran is advised that such information is necessary in fully developing his claims and that he is the only source for the necessary information. Then, the RO should request the veteran's Army Reserve unit to provide a copy of any medical records for the veteran in its possession. If the veteran identifies any service medical facility or other potential source for obtaining additional service medical records, the RO should contact the source directly for the purpose of obtaining such records. 3. The RO should obtain verification of any dates of active duty for training served by the veteran. 4. Upon completion of the development requested in paragraphs 1 and 2, the veteran should be provided a VA examination to determine the current severity of his service-connected right knee disabilities. Any necessary tests or studies, including X-rays, should be conducted. Tests of joint movement against varying resistance should be performed by the examiner. The extent of any knee instability and limitation of motion should be noted. The extent of any incoordination, weakened movement and excess fatigability on use should also be described by the examiner. The examiner should be requested to identify any objective evidence of pain, identify the specific excursion of any motion accompanied by pain and, to the extent possible assess the extent of any pain. The examiner should also express an opinion concerning whether there would be additional limits on functional ability during flare-ups (if the veteran describes flare-ups), and, if feasible, express this in terms of additional degrees of limitation of motion during flare-ups. If this is not feasible, the physician should so state. The examiner should also provide opinions concerning the impact of each of the service- connected knee disabilities on the veteran's ability to work. The rationale for all opinions expressed should be explained. The claims file must be made available to and reviewed by the examiner. 5. Thereafter, the RO should review the claims file and ensure that all developmental actions, including the medical examination and requested opinions, have been conducted and completed in full. The RO should then undertake any other indicated development and readjudicate the veteran's claims, to include entitlement to service connection on a secondary basis under 38 C.F.R. § 3.310 and Allen, and to include consideration of the provisions of 38 C.F.R. §§ 3.321(b), 4.40, and 4.45. 6. If the benefits sought on appeal are not granted to the satisfaction of the veteran or if a timely notice of disagreement is received with respect to any other matter, a Supplemental Statement of the Case on all issues in appellate status should be issued and the veteran and his representative provided with an opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. SHANE A. DURKIN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).