Citation Nr: 1301252 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 09-14 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Private Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tabitha G. Macko, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1950 to September 1954 and from December 1954 to December 1965. This matter is before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). The case was originally before the Board on appeal from a July 2008 rating decision by the Boise, Idaho Department of Veterans Affairs (VA) Regional Office (RO). In July 2010, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. The case was before the Board in July 2010, when it was remanded for additional development. In a decision issued in February 2011, the Board denied the Veteran's claim of service connection for a left knee disorder. He appealed that decision to the Court. In June 2012, the Court issued a mandate that vacated the February 2011 Board decision and remanded the matter on appeal for readjudication consistent with the instructions outlined in its June 2012 memorandum decision. The issue of special monthly compensation (SMC) based on the need for regular aid and attendance (A&A) of another person has been raised by the record (August 2010 statement), 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. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In June 2012, the Court vacated the Board's February 2011 decision and remanded the matter of service connection for a left knee disorder for readjudication consistent with the instructions outlined in its June 2012 memorandum decision. The Court's memorandum decision is the "law of the case." The Court noted that the Board had not adequately considered the lay statements of record and the Court found that the August 2010 VA examination was inadequate. The RO had arranged for a VA examination in August 2010 to assess the Veteran's left knee disability, at which time the examiner opined that the Veteran's left knee disorder was less likely than not related to service, to include to the injury he alleges occurred in Thailand in 1965 when he stepped in a hole and twisted the knee while running in a combat-type situation. Though the examiner referred to the Veteran's lay statement describing the 1965 injury in his rationale, the examiner appeared to rely upon the presence and the absence of medical documentation for his opinion. When VA arranges for an examination of the Veteran, it must ensure that the examination is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Court has found that the August 2010 examination is inadequate because the examiner relied on the lack of contemporaneous medical documentation to support his opinion of a lack of nexus between service, and the described injury in Thailand, and the current left knee disability. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (holding that VA cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). A review of the record found that the Veteran has made a variety of statements pertaining to his left knee disorder. As is well established, there are no service treatment records in the claims file that document a left knee injury or a request for treatment for the left knee. That the Veteran served in Southeast Asia from late December 1964 to August 1965 is also of record. He testified before the undersigned that he sought medical attention while still serving in Thailand sometime after he injured his left knee, by stepping in a hole running from enemy fire; however, no treatment records from any service Thailand facility have been located. The Veteran did seek medical attention in August 1965 upon his return to his stateside assignment; however he sought attention for traces of blood in his stool and there was no complaint regarding his left knee. The Veteran submitted two statements from signatories who identified themselves as officers who were assigned to various locations in Thailand and Southeast Asia; however, despite extended discussions of the nature of U.S. service in Thailand and covert activities in the early days of the Vietnam conflict, the signatory "L/Col Shinkle" never identifies that or how he knew the Veteran or how he knew of the Veteran's left knee injury in Thailand. As his statement consists of his signature block added to the statement of the other signatory, Major Holden, the Board finds the statement by "L/Col Shinkle" to have no relevance and no probative value. The Board finds the statements of Major Holden (there are two in the record) to have limited probative value. Major Holden supplied a group order that listed both himself, as a Captain, and the Veteran; therefore, there is evidence he may have known the Veteran during the TDY to Southeast Asia. However, in his account of U.S. activities in Thailand in 1965, he describes what the Veteran would have been doing when he describes the Veteran running from gunfire such that he stepped in a hole in the jungle floor and twisted his left knee. Major Holden does not explain in his statement how he knows of the injury or what the Veteran was actually doing that caused an injury. The Veteran testified before the undersigned that neither Major Holden nor "L/Col Shinkle" witnessed the injury in 1965. As Major Holden is merely repeating the Veteran's own account of his injury in 1965, the statement by Major Holden has very little probative value. Finally, there is a third statement of record that attests to the Veteran's activities in Southeast Asia in 1965. Chief Williams submitted a statement dated in August 2007 that attests to his knowledge of the Veteran in Thailand in 1965 and a brief description of the Veteran's duties (Chief Williams states he served with the Veteran). This statement does not mention injuries. That the Veteran served in Southeast Asia, specifically Thailand in 1965, is not in dispute. Of significance is the description of the Veteran's duties by Chief Williams. This non-commissioned officer described the Veteran's duties as a photographer assigned to a detachment medical team, who also assisted the team as a spotter and jumpmaster for several parachute jumps and medical supply drops during the assignment. This statement the Board finds credible and probative as to the Veteran's duties in Southeast Asia because the Veteran's service treatment records confirm he was granted flight crew status by waiver from the commander in October 1964. The Veteran testified before the undersigned that he injured his left knee while in Thailand, in March 1965, running from insurgent fire when he stepped into a hole and twisted his left knee. He also testified that he had no problems with the left knee from 1965 to 1982 (indeed, a May 1966 VA examination found the musculoskeletal system clinically normal); however, when working abroad in Saudi Arabia, he began to experience symptoms and received local medical attention. He also reported that he worked abroad in Saudi Arabia and Turkey until the late 1990's, and so, any medical reports dated from these years of treatment would not be available. The first medical reports that are available to describe his treatment and left knee symptoms are dated in 1999 (Dr. Waters). While the Court correctly noted that the Board cannot rely on the absence of contemporary medical treatment reports to corroborate a Veteran's statement, the Board also need not ignore when the Veteran's statements are inconsistent and contradicted by documents in the record. On VA joints examination afforded the Veteran in April 2004 in connection with another claim (years prior to the submission of the current claim), the Veteran reported to the VA examiner that he injured his left ankle in 1956, in a volleyball game, and was told he had torn ligaments in the left knee in addition to the left ankle injury. With his current claim, he reports an injury to the left knee not in a 1956 volleyball game, but while running from insurgent fire in Thailand in 1965. While the Court has determined that the August 2010 VA examination was inadequate, that determination does not expunge the Veteran's statements made during the examination. As the Veteran provides inconsistent reports of how he injured his left knee in-service, the Board finds his reports not credible. As well, the Board finds the Veteran's credibility as a witness very limited because other statements of his stand in contrast to each other and to other objective documents of record. He testified before the undersigned that in the 1980's and 1990's he worked abroad in Saudi Arabia and Turkey, and that therefore no records of the treatment he sought for his left knee symptoms would be obtainable. Yet, the record contains evidence of VA medical treatment in June 1987 (in the form of a discharge summary following a left ankle debridement that also assessed gout). And on an October 1985 VA Social and Industrial Survey, by a VA Social Worker, in which the Veteran described his work pattern of months employment in Saudi Arabia followed by frequent return to the United States. In August 1987 he submitted a financial status form to VA that attested to his being unemployed, stateside. Finally, to the 2004 VA examiner the Veteran reported that in the 1980's he received VA medical treatment in the form of two debridements of his left ankle. Therefore, not only was the Veteran in the United States in the 1980's and receiving medical treatment, he received VA medical treatment that would have included assessments of the left lower extremity. Any outstanding records of VA treatment the Veteran received for orthopedic complaints (including pertaining to the left knee) are constructively of record, may contain pertinent information, and must be secured. As the Court has found the August 2010 VA examination inadequate, the Veteran must be afforded another examination to consider the nature and etiology of the current left knee disorder. The Board has found that the report of Veteran injuring his left knee while stepping into a hole, running from insurgent fire in Thailand, to be not credible; however there remains the credible description of his duties that included parachute jumps and his flight crew status and his left ankle injury in 1956, from a volleyball game documented in the record. Accordingly, the case is REMANDED for the following: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should secure for the record copies of the complete updated clinical records of all VA treatment or evaluation the Veteran has received for his left knee at VAMC Boise since August 2010. The RO should also arrange for an exhaustive search for any (and all) records of orthopedic evaluation or treatment (including for the left knee) the Veteran received at VAMC Boise from 1980 to March 1999. If none are located, the scope of the search should be documented in the record. 2. The RO should then arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of his left knee disability. The Veteran's claims file, to include this remand, must be reviewed by the examiner in conjunction with the examination. Based on a review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following: Please identify (by medical diagnosis(es)) the Veteran's left knee disability(ies) and opine whether it is at least as likely as not (a 50 percent or better probability) that such disability(ies) is/are related to his service, to include as resulting from duties that included parachute jumps or the known injury to the left ankle in 1956. The examiner must consider that the Veteran is competent to report when he experienced symptoms in the left knee and what the symptoms were, but that the Board has found his report of falling into a hole and twisting the left knee in 1965 while running from insurgent fire in Thailand to not be credible. The examiner must explain in detail the rationale for all opinions. 3. The RO should then readjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his attorney the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ George R. Senyk 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).