Citation Nr: 1300428 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 09 27 817A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a right knee disorder, to include as due to undiagnosed illness or other qualifying chronic disability. 2. Entitlement to service connection for a left knee disorder, to include as due to undiagnosed illness or other qualifying chronic disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from May 1992 to July 1992, from August 1994 to July 1996 and from June 2007 to May 2008. He also had subsequent service in the Army Reserves and the Kentucky Army National Guard. Service in Southwest Asia is indicated by the record. Because of the complex procedural history of the Veteran's claims, the Board concludes that a brief recitation of pertinent facts is necessary. In May 2008, the Veteran filed claims to establish service connection for bilateral knee disorders and a low back disorder. These claims were denied by the RO in an August 2008 rating decision. In October 2008, the Veteran requested reconsideration of his claims and, in support of this request, submitted service department records that were not associated with the record at the time of the August 2008 rating decision. However, before the RO reconsidered the Veteran's claims in light of these records as per 38 C.F.R. § 3.156(c), the Veteran submitted a timely notice of disagreement with the November 2008 rating decision. In a January 2009 rating decision, the RO denied the Veteran's claims in consideration of all of the evidence of record. Later that month, the Veteran expressed continued disagreement with the RO's denial of his claims to establish service connection for bilateral knee disorders and a low back disorder. The Veteran was provided a Statement of the Case (SOC) in April 2009 which continued to deny his claims. In August 2009, the Veteran's representative submitted Magnetic Resonance Imaging (MRI) reports pertaining to the Veteran's low back and right shoulder which were "in support of the pending claim for benefits." Neither the August 2009 statement from the Veteran's representative nor the MRO reports addressed either of the Veteran's knees; however, this statement and evidence were accepted by the RO as a substantive appeal concerning the Veteran's claims to establish service connection for bilateral knee disorders and a low back disorder. The Board will not disturb this determination. In a May 2010 rating decision, the RO granted the Veteran's claim to establish service connection for a low back disorder. Since service connection was granted, the Veteran's appeal as to that issue has become moot. The Veteran has not disagreed with the assigned evaluation or the effective date. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). Therefore, that matter has been resolved and is not in appellate status. In June 2010, the Veteran's claims to establish service connection for bilateral knee disorders were certified to the Board. 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 was afforded a VA general examination in connection with his claims in June 2008. However, after a review of the record, the Board concludes that this VA examination is inadequate for the purposes of adjudicating the Veteran's claims, and thus, a remand is necessary. The June 2008 VA examination report reflects that Veteran's complaints of bilateral knee pain which began shortly after his deployment to Iraq. The Veteran denied any specific in-service injury to either knee and demonstrated a full range of motion with complaints of pain throughout. X-ray testing reflected normal knees. However, as noted above, the record reflects that the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War, and thus service connection may be established if the Veteran exhibits objective indications of a chronic disability resulting from undiagnosed illness or medically unexplained chronic multisymptom illness, to include joint pain, that became manifest to a degree of 10 percent or more not later than December 31, 2011, and cannot be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1) (2012). The June 2008 VA examination did not address whether the Veteran's complaints of bilateral knee pain constitute an objective indication of a qualifying chronic disability resulting from undiagnosed illness or medically unexplained chronic multisymptom illness that cannot be attributed to any known clinical diagnosis. Under these circumstances, the Board concludes that the Veteran must be afforded another VA examination which addresses his claims under all possible theories of entitlement. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.) Further, the Board notes that additional evidence, namely VA treatment records, has been associated with the record since the RO's last adjudication of the Veteran's claims in April 2010 and the certification of the Veteran's claims to the Board in June 2010. Upon remand, the RO and AMC must ensure that the entire record is available to the VA examiner and considered by the AMC when readjudicating the Veteran's claims. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC must obtain all outstanding VA medical records related to the Veteran's disabilities on appeal from the Louisville VAMC dated from December 2009 to the present and the Newburg CBOC dated from October 2012 to the present. All records and/or responses received should be associated with the claims file. 2. The RO/AMC must schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of any disability manifested by pain in the Veteran's knees. The complete record and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. The examiner must record all pertinent medical complaints, symptoms, and clinical findings, and must review the results of any testing prior to completion of the report. X-ray and MRI testing of both of the Veteran's knees should be completed, and the reports of these tests are to be associated with the record. Following a review of the record, to include service and post-service medical records, and the examination results, the examiner is requested to identify any disability of either of the Veteran's knees. If a diagnosis cannot be rendered concerning either of the Veteran's knees, the VA examiner must state whether the Veteran's knee pain is a symptom of a diagnosable disorder, a manifestation of undiagnosed illness, a medically unexplained chronic multisymptom illness defined by a cluster of signs or symptoms, or none of these. The term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Such illness includes joint pain and fibromyalgia. Chronic multisymptom illnesses of partially understood etiology and pathophysiology are not considered medically unexplained. If the Veteran's bilateral knee pain is found to be a symptom of a diagnosable disorder, the examiner must state whether the diagnosable disorder is at least as likely as not (i.e. a 50 percent probability or more) related to the Veteran's active military service, to include the Veteran's service in the Southwest Asia theater of operations during the Persian Gulf War. A complete rationale for all opinions must be provided. 3. Notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of one or more of his claims. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. After completing the above development, and any other development deemed necessary, readjudicate the issues remaining on appeal. If any benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The Veteran 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). ______________________________________________ ROBERT C. SCHARNBERGER 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).