Citation Nr: 1300753 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 08-08 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a left shoulder disorder 3. Entitlement to an increased rating for hypertension, currently evaluated as 10 percent disabling. 4. Entitlement to service connection for impotence. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from February 1967 to February 1970, and from March 1970 to August 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In April 2012, the Veteran and his wife testified at a hearing before the undersigned at the RO. A transcript of the hearing has been associated with the claims folders. 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 As to all the issues on appeal, while the August 2011 and October 2011 supplemental statements of the case reported that the RO reviewed July 2008 to August 2011 electronic treatment records of the Veteran from the Central Alabama VA Health System, these records are not found in the claims file. Therefore, a remand to obtain and associate these records with the claims file is required. See 38 U.S.C.A. § 5103A(b) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). As to all the issues on appeal, at the April 2012 personal hearing the Veteran identified the location of medical records from a number of locations which could be helpful to his claims but which do not appear in the claims file. As to his right knee disorder, he reported that shortly after his March 1976 separation from active duty he had a physical in connection with his employment with the United States Printing Office which documented problems with his right knee. He also testified that for approximately the next three years while working for the United States Printing Office he received treatment for his right knee disorder from the Washington, D.C. VA Medical Center. Similarly, the Veteran testified that he received treatment for his right knee disorder from his employer, the Army Corps of Engineers, while he was working for them from 1985 to 2004. The Veteran also testified that he saw a Dr. Lusky for treatment for his right knee disorder. As to his hypertension, the Veteran reported that he received regular treatment from his family doctor for many years. Therefore, a remand to obtain and associate these records with the claims file is required. Id; Also see Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the veteran to attempt to obtain them); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Similarly, while a review of the record on appeal reveals that the Veteran receives ongoing treatment from the Montgomery VA Medical Center, which is part of the Central Alabama VA Health System, his post-August 2011 treatment records have not been obtained and associated with the claims file. Therefore, a remand to obtain and associate these records with the claims file is required. See 38 U.S.C.A. § 5103A(b); Bell, supra. As to the claim of service connection for a right knee disorder and a left shoulder disorder, the Veteran testified that these disorders where caused by a fall he took while running for cover during a rocket attack while serving in the Republic of Vietnam during his first period of military service. He also testified that his right knee disorder was thereafter aggravated by a 1974 motor vehicle accident during his second period of military service. The Veteran also testified that he had had the same observable problems with his right knee and left shoulder (i.e., pain, swelling, and limitation of motion), since his initial injury to the current day. As to his in-service injuries, service personnel records show the Veteran served in the Republic of Vietnam during his first period of active duty. Moreover, service treatment records dated in August 1976 document the Veteran's complaints and treatment for left shoulder pain following a motor vehicle accident. Additionally, the post-service records document the Veteran's complaints and treatment for variously diagnosed right knee and left shoulder disorders. Furthermore, the Board finds that the Veteran is competent and credible to report on what he can see and feel such as observable symptoms of right knee and left shoulder disorders (i.e., pain, swelling, and limitation of motion) while on active duty since falling while running and since a motor vehicle accident, because these symptoms come to him through his own senses. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Given this history, the Board finds that these issues also need to be remanded to obtain a medical opinion as to the relationship between the Veteran's post-service right knee and left shoulder disorders and his military service. See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As to the claim of service connection for impotence, the RO provided the Veteran with a VA examination in August 2009 to obtain a medical opinion as to the origins or etiology of this disability. However, the Board finds this examination inadequate. The Board has reached this conclusion because the examiner did not provide an opinion as to whether his service-connected heart disease including hypertension and including the medication he takes to treat these service connected heart disabilities, aggravated his current impotence. See 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995) (holding that compensation is payable when a service-connected disability has aggravated a nonservice-connected disorder). Therefore, the Board finds that a remand to obtain an adequate VA examination is required. See 38 U.S.C.A. § 5103A(d); 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). As to the claim for an increased rating for hypertension, given the evidence which had been added to the claims file since the last VA examination in May 2006, the Board finds that while the appeal is in remand status the Veteran should be afforded another examination to ascertain the current severity of his disability. See 38 U.S.C.A. § 5103A(d); Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA's duty to assist includes conducting a thorough and contemporaneous examination of the veteran that takes into account the records of prior examinations and treatment). Accordingly, the appeal is REMANDED to the RO/AMC for the following actions: 1. The RO/AMC should obtain and associate with the claims file the Veteran's July 2008 to the present treatment records from the Central Alabama VA Health System including his July 2008 to August 2011 electronic treatment records and all records held by the Montgomery VA Medical Center. All actions to obtain the requested records should be documented fully in the claims file. 2. The RO/AMC should obtain and associate with the claims file the Veteran's post-March 1976 records from the Washington, D.C. VA Medical Center. All actions to obtain the requested records should be documented fully in the claims file. 3. The RO/AMC, after obtaining authorizations from the Veteran, should obtain and associate with the Veteran's claims file his employment physical during the mid-1970's from the United States Printing Office, any medical records dated from 1985 to 2004 held by the Army Corps of Engineers, and all treatment records in the custody of Dr. Lusky and his family doctor. All actions to obtain the requested records should be documented fully in the claims file. 4. After undertaking the above development to the extent possible, the RO/AMC should provide the Veteran with a VA examination to obtain an opinion as to the origins of his right knee and left shoulder disorders. The claims file should be provided to the examiner in connection with the examination. The examiner should conduct all indicated tests and studies deemed appropriate including X-rays and all clinical findings should be reported in detail. After a review of the record on appeal and an examination of the claimant, the examiner should provide answers to the following questions: a. As to each diagnosed right knee and left shoulder disorder, the examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that it was caused by military service or has continued since military service. b. If the Veteran has arthritis in either the right knee and/or left shoulder, the examiner is requested to provide an opinion as to whether the arthritis manifested itself to a compensable degree in the first post-service year. In providing answers to the above questions, the examiner should comment on and/or take note of the fact that the claimant is competent and credible to report on the observable symptom of his various disabilities (i.e., pain, limitation of motion, and swelling, etc . . .) and service treatment records document a motor vehicle accident with a left shoulder injury while on active duty, If the examiner cannot provide an answer to any of the above questions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies). If the examiner cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided. In providing answers to the above questions, the examiner is advised that he cannot rely solely on negative evidence. In providing answers to the above questions, the examiner is advised that the term at least as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered. 5. After undertaking the above development to the extent possible, the RO/AMC should provide the Veteran with a VA examination by an appropriate medical doctor to obtain an opinion as to the relationship, if any, between the Veteran's impotence and his service-connected heart diseases including hypertension and including the medication he takes to treat these service connected heart disabilities. The claims file should be provided to the examiner in connection with the examination. The examiner should conduct all indicated tests and studies. After a review of the record on appeal and an examination of the claimant, the examiner should provide answers to the following questions: a. Is it at least as likely as not (50 percent probability or more) that the Veteran's impotence was caused by any of his service-connected heart disorders including hypertension and including the medication he takes to treat these disorders? b. Is it at least as likely as not (50 percent probability or more) that the Veteran's impotence was aggravated by any of his service-connected heart disorders including hypertension and including the medication he takes to treat these disorders? In providing answers to the above questions, the examiner should comment on and/or take note of the fact that the claimant is competent and credible to report on the observable symptoms of his disability. If the examiner cannot provide an answer to any of the above questions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies). If the examiner cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided. In providing answers to the above questions, the examiner is advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent that is possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. In providing answers to the above questions, the examiner is advised that the term at least as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered. 6. After undertaking the above development to the extent possible, the RO/AMC should provide the Veteran with a hypertension examination. The claims file should be provided to the examiner in connection with the examination. All indicated tests and studies deemed appropriate by the examiner must be accomplished and all clinical findings should be reported in detail. The examiner is to thereafter provide a detailed review of the Veteran's history, current complaints, and the nature and extent of his hypertension. a. In addition to any other information obtained, the examiner should provide an opinion as to whether, since 2006, the Veteran's hypertension is manifested by diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more; diastolic pressure predominantly 120 or more; or diastolic pressure predominantly 130 or more. In answering the above question, the examiner should take into account that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. If there was a material change in the severity of the Veteran's hypertension at any time since 2006, the examiner should identify the date of this change and provide an answer to the above question as to the severity of the hypertension before and after the change. A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered. 7. The RO/AMC should thereafter readjudicate the claims. As to the claim for an increased rating for hypertension, such readjudication should consider staged ratings if warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a SSOC. The SSOC must contain notice of all relevant actions taken on the claims for benefit since the October 2011 SSOC, and any evidence not received, and all applicable laws and regulations considered pertinent to the issues currently on appeal including 38 C.F.R. § 3.310 (2006). A reasonable period of time should be allowed for response before the appeal is returned to the Board. 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 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). _________________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).