Citation Nr: 1007791 Decision Date: 03/02/10 Archive Date: 03/11/10 DOCKET NO. 06-05 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for a left ankle disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for a low back disability, to include degenerative disc disease (DDD) of L5 - S1. REPRESENTATION Appellant represented by: Francis M. Jackson, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.A. Kennerly, Counsel INTRODUCTION The Veteran served in the Air Force National Guard and served on active duty from November 2, 1969 to March 1, 1970. The appellant also had subsequent service in the Army National Guard. In December 2006, the appellant presented sworn testimony during a Board video conference hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the appellant's claims file. These claims were previously before the Board in July 2007. At that time, the claims were remanded for additional evidentiary development. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the appellant, through his representative, submitted a VA Form 9 [Substantive Appeal] in February 2008, expressing disagreement with the July 2008 Supplemental Statement of the Case. On this form, the appellant indicated that he wished to have a second Board hearing. 38 C.F.R. § 20.700 states that "[a] hearing on appeal will be granted if an appellant or an appellant's representative acting on his or her behalf, expresses a desire to appear in person." As the appellant has already been afforded a Board hearing, the appellant's theory of entitlement has not changed and no additional claims have been added to the appeal, the Board declines to provide the appellant with a second hearing. 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 on his part. REMAND The Board is cognizant of the fact that the appellant's claims have been in adjudicative status since 2006, and that they have been remanded in the past. Consequently, the Board wishes to assure the appellant that it would not be remanding his claims again unless it was essential for a full and fair adjudication. The appellant alleges that he is entitled to service connection for the aforementioned claims. Specifically, he alleges that he sustained injuries to his back, knees and left ankle during the two week annual training period required for participation in the National Guard. During his Board hearing, the appellant testified that he injured his low back in 1977 and injured his knees and left ankle in 1980. See Board Video Conference Hearing, p. 3, December 21, 2006. He also indicated that he had no other periods of active duty service after 1970, only the two week annual training periods required each year. Id. at p. 12. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110, 1131 (West 2002). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b) (2009). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2009). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The term "active military, naval, or air service" includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. See 38 U.S.C.A. §§ 101(22), 101(24) (West 2002 & Supp. 2009); 38 C.F.R. § 3.6 (2009). Only service department records can establish if and when a person was serving on active duty, active duty for training, or inactive duty training. See Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The Board notes that the appellant's treatment records from his service in the National Guard demonstrate complaints of lumbar spine, knee and ankle problems. However, it is not clear from the evidence of record whether the appellant injured his back, knees or ankle during a period of ACDUTRA or INACDUTRA. While the RO did attempt to obtain verification of the Veteran's periods of active service, ACDUTRA or INACDUTRA, the Board finds that complete development had not been achieved. See Stegall, supra. Indeed, while the RO did make a request for the purpose of verifying the appellant's periods of ACDUTRA and INACDUTRA from the New Hampshire Army National Guard in May 2008, the response from the New Hampshire Office of the Adjutant General did not satisfy the Board's remand directive. The Adjutant General noted that the appellant had been a member of the New Hampshire Air National Guard from July 15, 1969 to February 6, 1978 and from February 28, 1978 to November 16, 1979. Additionally, it was noted that although the appellant enlisted in the New Hampshire Army National Guard, his enlistment was voided because he was still a member of the New Hampshire Air National Guard. See Adjutant General Response Letter, May 16, 2008. It is clear from review of the appellant's claims file that he did have service in the Army National Guard. The appellant's NGB Form 22 stated that the appellant had service in the Army National Guard from November 1979 to November 1986. The RO failed to address this fact and follow up with the Adjutant General. This must be accomplished. Further, in August 2008, a VA Personnel Information Exchange System (PIES) printout indicated that the RO had requested the verification of the appellant's dates of service, including active, ACDUTRA and INACDUTRA. A response noted that no records could be identified based on the information furnished, but that the RO should re-submit the request using a different PIES code if additional information could be obtained. There was no follow-up requesting the type of information needed which would help verify the Veteran's periods of service. This should be accomplished. The RO should also contact the United States Army Enlisted Records & Evaluation Center (USAEREC) in Indianapolis, Indiana, to obtain any available service records for the appellant. The RO must then determine the appellant's periods of ACDUTRA and INACDUTRA, if any. After these dates have been established, the appellant must be afforded VA examinations. While the evidence of record has already established that the appellant has a current low back disability, there is no medical evidence demonstrating disabilities of the knees and left ankle. The appellant has testified that he has suffered from left ankle and bilateral knee pain since his alleged injuries in 1977 and 1980. Based upon his competent lay observations, he must be afforded a VA joints examination. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (holding that Veteran was competent to testify regarding continuous knee pain since service); see also Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005) (holding that Veteran was competent to report hip disorder, pain, rotated foot and limited duty). Accordingly, the case is REMANDED for the following action: 1. The RO should again contact the appropriate federal depositories in an attempt to obtain any service records related to Army National Guard service, and to verify the dates of such service, to include any periods of active duty, ACDUTRA and INACDUTRA. The RO should contact the appropriate federal depositories in an attempt to obtain any service records related to Air National Guard service, and to verify the dates of such service, to include any periods of active duty, ACDUTRA and INACDUTRA. Records solely showing the accumulation of points for retirement are NOT sufficient; there must be evidence of the dates that the appellant actually was in ACDUTRA or INACDUTRA status, if any. If during his service with the National Guard, the appellant had no periods of ACDUTRA or INACDUTRA service, this must be specified. In addition to any other relevant avenues of obtaining the appellant's service records, the RO should complete the following: Contact the New Hampshire Office of the Adjutant General again to obtain any available service records for the appellant's time in the Army National Guard. These dates should include the time frame of November 1979 through November 1986. Pursuant to the August 2008 PIES response sheet, the RO should find out what additional information is needed in order to put in a request using Request Code S02. Contact the USAEREC in Indianapolis, Indiana, to obtain any available service records for the appellant. Any responses received to the requests specified above should be memorialized in the appellant's claims file. 2. The RO should schedule the appellant for a VA joints/spine examination for the purpose of determining the nature and etiology of any current back, left ankle and bilateral knee disorder found. The examiner should specifically state whether there is a diagnosed disability involving the back, left ankle and knees. Based on the examination findings, history provided by the Veteran, as well as historical records and medical principles, the VA examiner should provide a medical opinion, with full rationale, as to whether any current low back disability, left ankle disability or bilateral knee disability is at least as likely as not the result of active military service or a verified period of ACDUTRA or INACDUTRA. In this regard, the examiner must be provided with a list of all of the Veteran's periods of active service, ACDUTRA and INACDUTRA while serving in the Army National Guard and Air National Guard. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 that conclusion as it is to find against it. 4. Thereafter, the RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall, supra. 5. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims should be readjudicated. If the claims remain denied, a supplemental statement of the case should be provided to the appellant and his representative. After they have had an adequate opportunity to respond, this issue should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2009). These claims 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 2002 & Supp. 2009). _________________________________________________ K. OSBORNE 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. See 38 C.F.R. § 20.1100(b) (2009).