Citation Nr: 1202425 Decision Date: 01/23/12 Archive Date: 02/07/12 DOCKET NO. 10-41 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a low back disability, to include on a secondary basis. 4. Entitlement to service connection for a left hip disability, to include on a secondary basis. 5. Entitlement to service connection for a right hip disability, to include on a secondary basis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant served with the Texas Army National Guard from May 1991 to September 1991. As he did not have any active duty service, and is not currently service connected for any disabilities, he will be referred to as an "appellant" in the current decision. See 38 U.S.C.A. § 101(2) and (24); 38 C.F.R. § 3.1(d). These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Waco, Texas, Regional Office (RO) of the United States Department of Veterans Affairs (VA). In September 2011, the appellant indicated that he would not be able to attend a Board hearing due to being incarcerated with no method of transportation; his request for a hearing is considered to be withdrawn. See 38 C.F.R. § 20.704(e). The issues have been characterized as indicated on the title page to comport with the evidence of record. 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 The appellant contends that he has a left knee disability and a right knee disability resulting from training exercises performed during his active duty for training service in the Texas Army National Guard. The appellant contends that he has developed a low back disability, a left hip disability, and a right hip disability as a result of his left and right knee disabilities. A request should be sent to the National Personnel Records Center and the Texas National Guard to obtain the appellant's service personnel records, including documentation of the specific dates on which he was placed on orders for active duty for training and inactive duty training. The appellant has indicated that his unit of assignment in the Texas Army National Guard was Company A 2/112th AR in Fort Worth, Texas. At his May 1991 entrance examination, the appellant's lower extremities were evaluated as normal. The examiner noted a history of left knee arthroscopic surgery at age 15 for torn cartilage, but x-rays on that same date in May 1991 revealed a normal left knee. Service treatment records in August 1991 noted the appellant's complaints of bilateral knee pain. An August 1991 Medical 200 Board report noted the appellant's reported history of intermittent bilateral knee pain prior to service entry and persistent symptoms of pain, swelling, locking, and giving way of the left knee since service entry with military related activities (such as running, PT, road march, etc.). The August 1991 Medical 200 Board report noted the following diagnoses for the appellant: internal knee derangement of the left knee (existed prior to service); ACL laxity of the left knee (existed prior to service); and bilateral patellofemoral joint syndrome (existed prior to service). The appellant was found unfit for military service, and a profile was issued until separation. The appellant's service treatment records do not document any complaints, findings, or treatment pertaining to his low back, left hip, or right hip. Attempts should be made to obtain all available treatment records for the appellant dating prior to his service entry in May 1991. Post-service private treatment records reflect initial complaints of left hip pain (February 2003), low back pain (March 2003), right knee pain (January 2006), bilateral flank pain (October 2006), and left knee pain (April 2010). Attempts should be made to obtain any updated treatment records that are available. The appellant should be scheduled for a joints examination, either by VA, by contract, or by prison personnel, to obtain opinions regarding the relationship between any current left and right knee disabilities and his service. All efforts taken to schedule and conduct the requested examination, including identifying and requesting the assistance of the appropriate prison officials, must be documented. The claims for service connection for a low back disability, a left hip disability, and a right hip disability are inextricably intertwined with the claims for service connection for a left knee disability and a right knee disability; the final outcome of the left knee and right knee service connection claims could materially affect the result of the low back, left hip, and right hip service connection claims. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The low back, left hip, and right hip service connection claims must be readjudicated after the left knee and right knee service connection claims are readjudicated following the completion of the development requested on remand. The appellant should be sent an updated VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that advises him about what is needed to substantiate his claims for service connection on a secondary basis. Accordingly, the case is REMANDED for the following actions: 1. Send the appellant an updated VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that advises him about what is needed to substantiate his claims for service connection on a secondary basis. 2. Send a request to the National Personnel Records Center and the Texas National Guard to obtain the appellant's service personnel records, including documentation of the specific dates on which he was placed on orders for active duty for training and inactive duty training. The appellant has indicated that his unit of assignment in the Texas Army National Guard was Company A 2/112th AR in Fort Worth, Texas. Any negative search result should be noted in the record and communicated to the appellant. 3. Request a properly executed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, from the appellant for each private facility from which he has sought treatment, to include prior to his service entry in May 1991. Upon receipt of such, take appropriate action to contact the identified provider(s) and obtain all available records related to treatment of the appellant. The RO should work with prison officials in obtaining prison facility medical records or other relevant medical records. The appellant should be informed that in the alternative he may obtain and submit the records himself. 4. Schedule the appellant for a joints examination, either by VA, by contract, or by prison personnel. All efforts taken to schedule and conduct the requested examination, including identifying and requesting the assistance of the appropriate prison officials, must be documented. The claims folder must be reviewed in conjunction with the examination. The examiner is to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any current left or right knee disability was incurred or aggravated in the line of duty during the appellant's service. The examiner is to indicate whether any current left or right knee disability is related to any condition that existed prior to service. If so, the examiner is to opine as to whether the pre-existing condition underwent a permanent worsening of the underlying disorder beyond normal progression (aggravation) in the line of duty during the appellant's service. If the examiner determines that such a condition was aggravated in the line of duty during service, then he/she is to opine whether any current left or right knee disability is related to that aggravation. A complete rationale for all opinions expressed must be provided. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 5. Review the claims file to ensure that all of the foregoing development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal for service connection for a left knee disability and a right knee disability, followed by the claims on appeal for service connection for a low back disability, a left hip disability, and a right hip disability. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the appellant and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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 Supp. 2011). _________________________________________________ RONALD W. SCHOLZ 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) (2011).