Citation Nr: 1031597 Decision Date: 08/23/10 Archive Date: 09/01/10 DOCKET NO. 07-00 381 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a peripheral neuropathy of the left leg and foot. 4. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Tahirih S. Samadani, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to April 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from June 2004 and December 2006 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. During the course of this appeal the RO granted service connection for PTSD and assigned a 30 percent evaluation. In May 2008, the Veteran testified at a hearing before the undersigned using video-conferencing technology. When this case was before the Board in November 2008, it was decided in part and remanded in part. It is now before the Board for further appellate action. The issue of a total disability rating based upon individual unemployability (TDIU) has been raised by Veteran during the May 2008 hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. 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 During the May 2008 video conference hearing, the Veteran reported that he had been receiving Social Security Administration (SSA) benefits since July 2005. The record does not reflect that efforts have been made to obtain these records since the time the Veteran began to receive these benefits. The Board also has no basis for preliminarily ascertaining that the disabilities for which SSA benefits were granted differ from those addressed in this appeal. But see Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (finding that the duty to assist did not include obtaining SSA records where VA had a copy of the decision, and there was no evidence that the decision addressed the disability at issue in the appeal). Efforts to obtain the SSA records are therefore required, pursuant to 38 C.F.R. § 3.159(c)(2). See also Baker v. West, 11 Vet. App. 163, 139 (1998) (VA's duty to assist includes obtaining SSA records when the veteran reports receiving SSA disability benefits, as such records may contain relevant evidence). Therefore, the issues before the Board cannot be adjudicated until efforts to obtain these records have been made. With regard to the claims for service connection for right knee, left knee and peripheral neuropathy of the left leg and foot, the Board finds that the opinions provided in the January and February 2009 VA examination reports do not comply with the November 2008 Board Remand. The November 2008 Board Remand states specifically that the reports of injuries sustained during the November 1968 bridge incident are deemed credible and should be taken into consideration by the examiner. Specifically, the Veteran reported that in November 1968, he hit his knees against the dash board and had pieces of shrapnel in his left leg and foot. The VA examiner, instead, based his opinions on the lack of treatment records for these disabilities. The November 2008 Board Remand also states that "the Veteran, by virtue of his service in Vietnam, was exposed to Agent Orange." Despite this stipulation, the examiner found no evidence of exposure to Agent Orange and therefore found that the Veteran's left leg and foot disability was unrelated to Agent Orange. The examiner was not asked to provide an opinion as to whether the Veteran was exposed to Agent Orange but instead to provide an opinion as to whether it is at least as likely as not that the Veteran's current left foot and left leg disability, including peripheral neuropathy, if found, is a result of exposure to Agent Orange during service. Given that the examination reports do not reflect full compliance with the Board's remand instructions, another opinion is necessary. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Accordingly, the case is REMANDED for the following action: 1. SSA should be contacted, and all records corresponding to the Veteran's reported grant of SSA disability benefits should be requested. All records obtained pursuant to this request must be included in the Veteran's claims file. If the search for such records has negative results, documentation to that effect should be included in the claims file. 2. After item #1 is completed, the Veteran's claims file and a copy of this entire remand should be furnished to the physician who conducted the February 2009 VA examination of the knees and left leg and foot; if that physician is unavailable, the claims file should be furnished to another appropriate medical professional. Based on a review of the claims file and the clinical findings of the February 2009 examination, the examiner is requested to offer the following opinions: Is it at least as likely as not (e.g., a 50 percent or greater probability) that the Veteran's current left leg and foot disability is related to the Veteran's military service, to include the November 1968 bridge incident? Is it at least as likely as not (e.g., a 50 percent or greater probability) that the Veteran's current left leg and foot disability, to include peripheral neuropathy, if found, is related to exposure to Agent Orange during his military service. (The Veteran was exposed to Agent Orange during his military service in Vietnam) Is it at least as likely as not (e.g., a 50 percent or greater probability) that the Veteran's right and left knee disabilities are related to the Veteran's military service, to include the November 1968 bridge incident? A complete rationale should be given for all opinions and conclusions expressed in a typewritten report. The examiner is advised that the Veteran is competent to report injuries and symptoms in service, regardless of the contents of the service treatment records, and that the Veteran's reports must be considered. 3. After completion of the above development, the Veteran's claims for service connection for PTSD, right knee, left knee, and left leg and foot disabilities should be readjudicated. If the determination of any of these claims remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond. 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. 2009). _________________________________________________ JOHN H. NILON Acting 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).