Citation Nr: 1300152 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 10-11 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for residuals, avulsion fracture, left ankle with degenerative arthritis. 2. Entitlement to service connection for migraine headaches. 3. Entitlement to service connection for residuals of a left knee injury. REPRESENTATION Appellant represented by: [redacted] WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from May 1976 to February 1985. This matter comes to the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board notes that the Veteran has executed two powers of attorney in relation to representation before VA. In February 2012, he executed a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, in favor of Disabled American Veterans (DAV). This was submitted in conjunction with claims not on appeal before the Board. Previously, in May 2010, the Veteran executed a VA Form 21-22a, Appointment of Individual as Claimant's Representative, in favor of his sister, Ms. [redacted]. This power of attorney was executed in conjunction with the claims currently before the Board. It is a special power of attorney, pursuant to 38 C.F.R. § 14.630, which allows for one-time representation by an individual who is not accredited by VA as required in 38 C.F.R. § 14.629. As it is a limited power of attorney tied to the claims on appeal, the Board finds that the later executed VA Form 22-22 in favor of DAV does not automatically revoke his sister's representation in this matter. She remains the representative of record in this appeal. The Veteran was afforded a videoconference hearing before the Board in November 2012. The Veteran confirmed his intent to be represented in this appeal by his sister, but noted that she was unable to appear at the hearing. The Veteran requested that the hearing proceed in her absence. A transcript of the testimony offered has been associated with the record, as has a written statement submitted by the Veteran during the hearing. The Veteran submitted an additional statement the day of the hearing indicating his desire to open a claim of entitlement to benefits under 38 U.S.C. § 1151 for additional disability, claimed as residuals of knee surgery, as a result of VA medical treatment in May 2009. In this statement, he also indicated that he believed his appeal included three additional issues, that of service connection for disabilities of the right ankle and knee, as well as PTSD. The Board has reviewed the record and found that in April 2009, the RO denied service connection for these disabilities. Although the Veteran filed a notice of disagreement in September 2009, it did not include these issues. Since that time, the Veteran has submitted additional evidence relating to the right ankle (see statement in March 2010) and an additional claim for PTSD (see DAV statement in March 2012). These issues (i.e., benefits under § 1151 and service connection for a right ankle disability, a right knee disability, and PTSD) have therefore been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are 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 In conjunction with his claim for an increased evaluation for the left ankle, the Veteran was scheduled for a VA general medical examination in September 2008. He received notice thereof, but failed to appear. There is no indication in the claims file as to why the Veteran failed to report for the VA examination, and it appears that notice of the examination was sent to his correct address. At his Board hearing, however, the Veteran indicated that he has significant pain and swelling in his left ankle. He also indicated his willingness to report for a VA examination. Given the Veteran's testimony of a worsening of symptoms, and the fact that he has demonstrated a willingness to report for a VA examination, the Board finds that the Veteran should be rescheduled for a VA examination to determine the current severity of his service-connected left ankle. The Veteran is hereby put on notice, however, that failure to report to the scheduled examination, without good cause, may well result in a denial of his claim. See 38 C.F.R. § 3.655. With respect to his service connection claims, for the left knee and for migraines, the Board finds that the Veteran should be afforded VA examinations to address their nature and etiology. The Veteran claims that his service as a mechanic, confirmed by his DD Form 214, required him to conduct much of his work on his knees. He also indicated that constantly jumping in and out of track vehicles put additional strain on his knees. He reported experiencing pain in the left knee both in service, and thereafter. He is competent to report such symptoms, and the Board finds him credible in his assertions, based on his occupational specialty. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2007). Furthermore, a review of the Veteran's service treatment records documents that he complained of bilateral knee pain in June 1978 and examination showed bumps (calcium deposits) on both knees. His VA treatment records document a current assessment of arthritis of the left knee. Under these circumstances, a VA examination and medical opinion are necessary to decide this claim. 38 C.F.R. § 3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Although not specifically argued on the record, service connection may be available for the left knee on a secondary basis, given the service-connected left ankle disability. Therefore, during the examination on the left knee, an opinion as to any relationship between the disabilities will be sought. The Veteran should also be afforded a VA examination to address his claim for service connection of migraine headaches. At his Board hearing, the Veteran explained that on one occasion in service he was struck in the head while working on a tank, resulting in a loss of consciousness. He related that he regained consciousness with the aid of his fellow soldiers, but did not seek medical attention as he was afraid of being passed over for a promotion. Again, the Board finds that the Veteran is competent to report such an incident, and there is no evidence to indicate that he is not credible. See Jandreau, supra. A November 2008 VA record documents a current complaint of migraines and that the Veteran's history and a MRI report were consistent therewith. He has offered a history of headaches since the described in-service incident. A VA examination and opinion are thus necessary to decide this claim. 38 C.F.R. § 3.159(c)(4) (2012); see McLendon , supra. At his Board hearing, the Veteran testified to being in receipt of Social Security Administration (SSA) disability benefits. It thus appears that SSA may be in possession of relevant outstanding records. No attempt to obtain the records associated with this claim has been made. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (holding that only relevant SSA records must be sought). Appropriate action to obtain all records associated with any SSA claim must be accomplished before adjudication can be made on the merits. See generally Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). Lastly, the Board notes that the Veteran receives fairly regular treatment at the West Los Angeles, California VA Medical Center (VAMC). The latest records from this facility are dated in May 2011. These records could potentially shed light on the Veteran's claims. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Consequently, the Board finds that VA must attempt to obtain any VA records not currently associated with the claims file, particularly any dated from May 2011 and on. While the further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain any VA medical records not currently associated with the claims file and associate them therewith, particularly any records dated after May 9, 2011 from the West Los Angeles VAMC. Perform any and all follow-up as necessary, and document negative results. 2. Appropriate efforts should be made to obtain from SSA the records pertinent to the Veteran's claim for SSA disability benefits. Perform any and all follow-up as necessary, and document negative results. 3. After the development directed in paragraphs 1 and 2 has been completed to the extent possible, schedule the Veteran for an appropriate VA examination, to include a complete physical examination, in order to determine the current severity of his service-connected residuals, avulsion fracture, left ankle with degenerative arthritis. Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail. The complete claims folder must be provided to the examiner for review in conjunction with the examination. The examination report should specifically state the degree of disability present in the Veteran's left ankle and his current range of motion, as well as identify any objective evidence of pain. The extent of any weakened movement and excess fatigability on use should be described. To the extent possible, the functional impairment due to weakened movement and excess fatigability on use should be assessed in terms of additional degrees of limitation of motion. Range of motion studies should be conducted using a goniometer and the use thereof should be noted in the examination report. When the Veteran is notified of the scheduling of the examination, he should be provided notice of the regulatory provisions regarding the consequences of failing to report for a scheduled VA examination. 38 C.F.R. § 3.655. 4. After the development directed in paragraphs 1 and 2 has been completed to the extent possible, schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and etiology of the Veteran's claimed residuals of a left knee injury. All indicated tests and studies should be conducted. The claims file should be available for review by the examiner. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination. Based on a review of the record and examination of the Veteran, the examiner should provide an opinion as to the following: a. whether it is at least as likely as not (a 50 percent or better probability) that any diagnosed left knee disability is attributable to service. The examiner is advised that the Veteran's lay assertions regarding his mechanic work in service requiring him to work on his knees and to jump off and on track vehicles are both competent and credible; therefore, any opinion offered must take into account whether such activities are causative of his current condition. b. whether it is at least as likely as not (a 50 percent or better probability) that any diagnosed left knee disability is caused, or is aggravated, by his service-connected left ankle disability. If it is determined that any requested opinion cannot be provided without resort to mere speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. The examiner is informed that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. When the Veteran is notified of the scheduling of the examination, he should be provided notice of the regulatory provisions regarding the consequences of failing to report for a scheduled VA examination. 38 C.F.R. § 3.655. 5. After the development directed in paragraphs 1 and 2 has been completed to the extent possible, schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and etiology of the Veteran's claimed migraine headaches. All indicated tests and studies should be conducted. The claims file should be available for review by the examiner. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examinations. The examiner should note that the claims file has been reviewed. Based on a review of the record and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that the Veteran's current migraine headaches are attributable to service. The examiner is advised that the Veteran's lay assertions regarding sustaining a blow to the head in service while working on a tank are both competent and credible; therefore, any opinion offered must take into account whether such a blow is causative of his current condition. If it is determined that any requested opinion cannot be provided without resort to mere speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. The examiner is informed that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. When the Veteran is notified of the scheduling of the examination, he should be provided notice of the regulatory provisions regarding the consequences of failing to report for a scheduled VA examination. 38 C.F.R. § 3.655. 6. After the development requested above has been completed to the extent possible, review the record and readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto before this case is returned to the Board. Please note that the Veteran's representative for this appeal only is [redacted]. For all other claims, to include those referred to the AOJ in the Introduction of this Remand, the Veteran is represented by DAV. 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. 2012). _________________________________________________ BETHANY L. BUCK 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) (2012).