Citation Nr: 0810948 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-37 306 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for diabetes mellitus, Type II. 2. Whether new and material evidence has been submitted to reopen the veteran's claim for entitlement to service connection for coronary artery disease. 3. Entitlement to service connection for a cerebrovascular accident. 4. Entitlement to service connection for a chronic bilateral knee disability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD A. A. Booher, Counsel INTRODUCTION The veteran had active service from October 1967 to June 1971, after which he had extensive, certified periods of ACDUTRA and INACDUTRA with the National Guard, and has apparently also worked as a civilian Guard employee. He was born in 1948. This appeal is from actions taken by the above Department of Veterans Affairs (VA) Regional Office (RO). The veteran has recently clarified that he does not wish a personal hearing. Service connection is in effect for cervical osteoarthritis, rated as 20 percent disabling; early vertebral spondylosis, lumbar spine, rated as 20 percent disabling; and tinnitus, for which a 10 percent rating is assigned. The U.S. Court of Appeals for Veterans Claims (Court) issued a decision in Haas v. Nicholson, 20 Vet. App. 257 (2006), which reversed a decision of the Board which had denied service connection for disabilities claimed as a result of exposure to herbicides. VA disagrees with the Court's decision in Haas, and is seeking to have the decision reversed by the U.S. Court of Appeals for the Federal Circuit. To avoid burdens on the adjudication system, delays in the adjudication of other claims, and unnecessary expenditure of resources through remand or final adjudication of claims based on court precedent that may ultimately be overturned on appeal, on September 21, 2006, the Secretary of Veterans' Affairs imposed a stay on the adjudication of claims affected by Haas. The specific cases affected by the stay include those involving claims based on herbicide exposure in which the only evidence of exposure is the receipt of the Vietnam Service Medal or service on a vessel off the shore of Vietnam. In the instant case, the issue of entitlement to service connection for diabetes mellitus, issue #1, will be stayed, since the veteran's claim is based upon receipt of the Vietnam Service Medal. He has not claimed, and his service records do not show, that he was ever physically within the Republic of Vietnam, although he has cited examples of his physical proximity to Vietnam while on board a given Navy vessel, and circumstances which he believes may have actually exposed him to dioxins (in addition to any presumptions which may ultimately be applicable). In addition to issue #1, it is noted that the veteran's arguments with regard to issues ##2 and 3 are in great part dependent upon a claimed secondary relationship to his diabetes mellitus, which is turn is dependent upon the alleged dioxin exposure claim. Accordingly, the Board will stay those as well, and will not issue a decision on these issues at present. Once a final decision is reached on appeal in the Haas case, the adjudication of any cases that have been stayed will be resumed. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action is required. REMAND Available service records note at least two instances of left knee complaints in service in 1969 and 1970. On a VA examination in 2001, it was noted that the veteran had bilateral knee complaints and range of motions were decreased, but it was said that X-rays were negative. An addendum is of record reflecting that neither the file nor the veteran was examined personally, and that history of knee pain was not diagnostic. Most of the National Guard records in the file relate to the veteran's heart and other problems rather than his knees. The veteran has indicated that since 1993 or so he has been seen privately by only one group of physicians, two of whom have provided statements. Clinical records are not shown from that group as relates to his knees. A statement is of record from Dr. GG, dated in November 2000. Dr. G reported that the veteran had been his patient for some years, and he had looked at his medical records. He concluded that the veteran's current orthopedic problems, including relating to his knees, more likely than not manifested themselves during service and were aggravated during his subsequent Guard tours to present. The nature of current knee problems was not further delineated, and clinical records relating to his knees did not accompany the statement. A statement is of record from RLH, M.D., dated in June 2003, to the effect that the veteran had been his patient for a number of years and had been diagnosed with "mechanical knee pain which would certainly fit the description of your problems over the years". Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a) (2007)), and secondary service connection may be found where a service- connected disability aggravates another, non-service- connected, condition (i.e., there is an additional increment of disability of the other condition which is proximately due to or the result of a service-connected disorder). Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). A recent regulatory amendment essentially codified Allen by adding language that requires that a baseline level of severity of the non- service-connected disease or injury must be established by medical evidence created before the onset of aggravation. In this case, service connection is in effect for arthritic involvement of both the cervical and lumbar segments of the veteran's back. Any potential secondary impact on his knees has not been addressed to date. Based on the evidence now of record, the Board finds that additional development with regard to issue #4 is necessary before a final decision is rendered. Accordingly, the case is REMANDED for the following action: 1. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (a) Up-to-date National Guard, private (and VA, if any) clinical records for his knee symptoms should be acquired and added to the file. (b) If the veteran had additional evidence which might be available with regard to his knee disabilities and arthritis, if any, from the time of his active service until present, he should submit it, and VA should assist as feasible. 2. The veteran should be scheduled for a VA orthopedic evaluation by an examiner who has not previously evaluated him, to determine the nature and etiology of all current knee problems. Specifically, after review of the evidence of record, the examiner should opine as to the following (in the context of what is at least as likely as not): (a) What is the correct diagnosis(es) of all current knee disabilities; and when and by what were they first demonstrated; (b) To what are each of these disabilities attributable; (c) Are they in any way attributable to any cause of service origin, including in- service trauma; (d) is it at least as likely as not that any other joint problems were attributable to the back problems already service connected, and by what is that determinable? (e) The Board notes that "at least as likely as not" does not mean merely with the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 3. The case should then be reviewed, and if the decision remains unsatisfactory, a supplemental statement of the case should be issued and the veteran and his representative should be given a reasonable opportunity to respond. The case should then be returned to the Board for final appellate consideration. The veteran need do nothing further until so notified. This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of the Board of Veterans' Appeals is appealable to the U.S. Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a final decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2007).