Citation Nr: 1000448 Decision Date: 01/05/10 Archive Date: 01/15/10 DOCKET NO. 07-25 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a right foot condition. 2. Entitlement to service connection for a right ankle condition. 3. Entitlement to service connection for a left ankle condition. 4. Entitlement to service connection for a left shoulder and clavicle condition. 5. Entitlement to service connection for a right knee condition. 6. Entitlement to service connection for a left knee condition. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD A. Willett, Counsel INTRODUCTION The Veteran served in the Army from November 1978 to December 1981, with additional service in the National Guard. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from February 2006 rating decisions of the Department of Veterans Affairs' (VA) Regional Office (RO) in Atlanta, Georgia. In October 2009, the Veteran contacted VA by telephone. A report of contact is in the claims folder, which indicates that the Veteran "would like to apply for an increase. He wants to apply for aid & attendance based on nervous sleep apnea and fibromyalgia. If the Veteran qualifies for pension with A&A, he would like to switch to pension." These issues have not been developed by the RO and are REFERRED for clarification and appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran is seeking to establish service connection for right foot and ankle, left ankle, left shoulder, and right and left knee disabilities. For service connection, the claims folder must contain (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." See Pond v. West, 12 Vet. App. 341, 346 (1999). In other words, entitlement to service connection for a particular disability requires evidence of the existence of a current disability and evidence that the disability resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2009). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2009). A review of the claims folder in this case reveals that the Veterans claims are underdeveloped. Under 38 C.F.R. § 3.159(c)(2), VA has a duty to assist the Veteran in obtaining Federally controlled records, such as service personnel and treatment records, post-service VA treatment records, and Social Security Administration (SSA) records. The record reveals that some of each type of record is missing from the Veteran's claims folder. With regard to the Social Security Administration, a copy of the Veteran's April 2006 Social Security decision awarding him disability benefits is in the claims folder. There is no evidence that the RO sought to obtain relevant treatment records from the SSA at any time during the course of this appeal. Because these records fall under the guidelines of § 3.159(c)(2) definition of the duty to assist, this matter must be remanded. As for VA treatment records, the claims folder contains outpatient records from the VA facility in Nashville dating between August 2005 and November 2005, and from May 2007 through March 2008. There is an eighteen month gap in these records. Also, the Veteran submitted a VA form 21-4142 at the time of his claim noting treatment at the VA medical facility in Chattanooga from July 2005 to the present. The RO limited the request for records from Chattanooga to January 1984 to July 2005. See October 2008 request. Under § 3.159(c)(2), VA must obtain all relevant treatment records from either facility dating from the Veteran's service through the present, and associate those records with the claims folder. Because the RO has not yet requested all relevant records, this matter must be remanded for additional development. Service records also fall within the § 3.159(c)(2) duty to assist. There appears to be missing service personnel and treatment records from this claims folder as well. A November 2005 PIES response verifies the Veteran's service dates with the Army as November 1978 to December 1981. The February 2006 rating decision, however, notes his dates of service as October 1977 to January 1978 with the Army National Guard, and May 1981 to December 1981 with the Army. It is unclear to the Board what his dates of service actually are. The Veteran's service dates should be verified on remand. Also, the service treatment record envelope contains records dating from the September 1978 Army enlistment examination through clinical records dating September 1981. Neither the records from the Veteran's period of National Guard service, nor his complete service treatment records from his period of service with the regular Army, including any separation examination, are of record. And, in April 2008, the Veteran submitted a statement indicating that he received treatment at the Fort Benning hospital in 1977. These records are included in what is missing from the claims folder, presumable from the National Guard records. This matter must be remanded in order to verify the Veteran's service and to obtain all of his service treatment records. Also, during the pendency of this appeal the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which placed two additional duties upon the VA. Under Dingess, VA must also provide proper notice of the evidence required to establish the degrees of disability and the effective date of an award. The October 2005 notice provided to the Veteran in this case is not in conformity with the Court's Dingess decision. A remand is also records for corrective notice. Once the aforementioned development takes place, VA must afford the Veteran a new VA examination with regard to his claimed disabilities. The July 2006 QTC examination is inadequate. There is no evidence in the report that the examiner had the claims folder for review, and the examiner did not provide any sort of nexus opinion with regard to the diagnoses made. After the records is complete, the Veteran should be afforded a new VA examination(s) with regard to his claimed disabilities. The entire claims folder must be provided to the examiner in association with the examination. Following examination of the Veteran and a review of the record, the examiner should provide an opinion regarding the etiology of the each of the diagnoses rendered by addressing whether it is more likely than not (i.e., probability greater than 50 percent)), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the Veteran's current disability was caused by an event of service, or whether it initially manifested during service and has continued ever since. Accordingly, the case is REMANDED for the following action: 1. Ensure that VA has met its duty to notify the Veteran, including issuing corrective notice fully compliant with 38 C.F.R. § 3.159(b) (2008), and Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. Ensure that VA has met its duty to assist the Veteran under 38 C.F.R. § 3.159(c)(2) by * Verifying all periods of service, including service with both the regular Army and Army National Guard; * Obtaining all service treatment records for all periods of service identified, including any 1977 treatment at the Fort Benning hospital; * Obtaining all relevant post-service VA outpatient treatment records from the date of the Veteran's discharge from service to the present, including but not limited to all non- duplicative records from the VA facility in Chattanooga from 2005 to the present, and in Nashville between November 2005 and May 2007. * Obtaining all relevant records from the Social Security Administration. If these federally controlled records cannot be obtained all attempts to obtain them, as well as any negative replies, should be associated with the claims folder, as well as a copy of the 38 C.F.R. § 3.159(e) notice to the Veteran of the inability to obtain records. 3. Afford the Veteran a new VA examination with regard to each of his claims. The entire claims folder must be provided to the examiner in association with the examination. Following examination of the Veteran and a review of the record, the examiner should provide an opinion regarding the etiology of any currently diagnosed claimed disability by addressing the following question with regard to each diagnosis: is it more likely than not (i.e., probability greater than 50 percent)), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the Veteran's disability was caused by an event of service, or whether it initially manifested during service and has continued ever since? The examiner should provide a rationale for any opinion provided. 4. Readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his accredited representative should be issued a supplemental statement of the case (SSOC) and given a reasonable opportunity to respond. The Veteran has the right to submit additional evidence and argument on the 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. 2009). _________________________________________________ MARJORIE A. AUER 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) (2009).