Citation Nr: 0815079 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 06-13 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a bilateral knee disorder. 3. Entitlement to service connection for a left shoulder disorder. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from April 2001 to April 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veteran's Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Initially, it is noted by the Board that as to the issues currently on appeal, VA has not specifically provided the veteran with notice of the allocation of burdens of obtaining evidence, and otherwise complied with the VCAA's duty to inform provisions. While the veteran was issued a VCAA letter in February 2007 regarding another issue previously on appeal (a right inguinal herniorrhaphy), containing the laws and regulations regarding VCAA, it is not believed that this is adequate notification to the veteran as to the issues currently on appeal. Similarly, the August 2007 letter regarding Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), (the need for notification that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded) is not considered adequate notice of VCAA duty to inform provisions. This inadequacy will be addressed in the REMAND below. As to the claims on appeal, it is the veteran's contention that service connection is warranted for a low back disorder, a bilateral knee disorder, and a left shoulder disorder. Shortly before service separation, he underwent a physical examination. He complained of problems in the joints as described above. Examination for VA purposes was accomplished in February 2005, just prior to the veteran's discharge from service, and while he reported pain in the back, knees and shoulder, examination was essentially normal. This included X-rays of the lumbar spine, knees, and shoulder, all of which were interpreted as normal. Post service VA records show that in June 2006 the veteran was seen for lower back and mid back pain. He reported a history of back pain of about 4 to 5 years. On this occasion, his back pain was worse since he worked in the yard raking and picking up rocks the previous day. X-rays showed mild degenerative changes. Post service VA post service records dated through April 2007 do not reflect treatment for knee problems. They do show, however, that the veteran was seen at VA in July 2005 for left shoulder complaints after working hard the day before. Shoulder sprain was diagnosed and physical therapy was the treatment. In June 2006, he reported chronic intermittent left shoulder pain that had increased in the past 24 hours since working in the yard. His left shoulder condition had flared again in January 2007. Orthopedic report in February 2007 included X-rays of the shoulder which were normal. Magnetic resonance imaging (MRI) was ordered, and in April 2007, it was noted that while the MRI showed no evidence of a tear, there was some acromioclavicular arthritis. He also had a downsloping acromion which suggested an impingement syndrome. It is the Board's conclusion that additional VA examination is necessary before making a determination on the current claims. Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(c)(4) (2007). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). In view of the foregoing, this case is REMANDED for further development: 1. The AMC/RO should ensure compliance with the duty to assist, documentation and notification requirements set forth in the Veterans Claims Assistance Act (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007). 2. The AMC/RO should contact the veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his low back, bilateral knee, or left shoulder conditions, on appeal. Any records that are not currently included in the clams file should be obtained and added to the file. With any necessary authorization from the veteran, the AMC/RO should attempt to obtain copies of pertinent treatment records identified by the veteran that are not currently of record. All efforts to obtain these records must be documented in the claims file. If any records cannot be obtained, it should be so stated, and the veteran is to be informed of any records that could not be obtained. If pertinent records are received, the AMC should ensure that VCAA examination and medical opinion requirements under 38 C.F.R. § 3.159(c)(4) are met as to this issue. 3. The veteran should also be afforded the appropriate VA examination to determine whether he has a lumbar spine, bilateral knee, or left shoulder of service origin. Following a review of the relevant medical records in the claims file, to include the veteran's medical history, the clinical evaluation and any tests that are deemed necessary, the examiner is asked to opine whether it is at least as likely as not (50 percent or more likelihood) that any disorder of the low back, knees, or left shoulder is causally related to any incident of service. If the requested medical opinions cannot be provided without resorting to pure speculation, it should be so noted. The examiner is also asked to provide a rationale for any opinion expressed, preferably with citation to the clinical record. The claims file must be made available to and reviewed by the examiners prior entering opinions on the above matters. The examiners must annotate the examination reports that the claims file was in fact made available for review in conjunction with the examinations. All testing deemed necessary should be performed. All findings should be reported in detail. 4. After completing any additional development deemed necessary, the AMC/RO should readjudicate the claims for service connection. If any benefit sought on appeal remains denied, the veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits. An appropriate period of time should be allowed for response. 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). 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). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).