Citation Nr: 1302180 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 08-17 429 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for patellofemoral syndrome, right knee. 3. Entitlement to service connection for sinusitis, maxillary. 4. Entitlement to service connection for a skin disability of the lower extremities, to include venous stasis dermatitis. 5. Entitlement to service connection for hemorrhoids. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from June 1952 to June 1956. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2007 and July 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In the August 2007 rating decision, the RO denied entitlement to service connection for left knee impairment. The appellant appealed the case to the Board and in a December 2010 decision, the Board denied the claim. The appellant appealed the Board's December 2010 decision to the U.S. Court of Appeals for Veterans Claims (Court). In August 2012, the Court issued a memorandum decision vacating the Board's decision regarding the claim for left knee impairment and remanding the case for readjudication in compliance with directives specified. As discussed below, in the July 2011 rating decision, the RO denied the appellant's claims for the other issues listed on the title page. The appellant filed a notice of disagreement with the decisions, but a statement of the case has not been issued. 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 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 was hospitalized for left knee pain during service. See October 2009 VA examination report. The appellant's service treatment records reflect that he was treated for knee complaints at the hospital at Perrin Air Force Base, but not that he was hospitalized there. See April 1956 service treatment record. In the August 2012 memorandum decision, the Court noted that the appellant asserted he had surgery on his left knee in 1955 or 1956 at Perrin Air Force Base. The October 2009 VA examination report reflects that the appellant reported a history of hospitalization or surgery in 1955-6 at Pirren Air Force Base for a left knee injury. Records regarding a hospitalization for a left knee injury have not been associated with the claims file. However, it does not appear that any attempt was made to obtain complete records from the appellant's hospitalizations at Perrin Air Force Base. As the records, if any, are relevant to the appellant's claim, to satisfy VA's duty to assist, an attempt should be made to obtain records from the appellant's hospitalization at Perrin Air Force Base. The etiology of the appellant's left knee was evaluated at a VA examination in October 2009. The VA examiner found that the appellant's left knee condition was not caused by or a result of military service. The VA examiner noted the April 1956 service treatment record indicating the appellant was treated for left knee pain, and stated that there was no reference to an injury. The appellant reported that he has had left knee pain since service. See July 2008 letter from M.L.C., M.D. As a lay person, the appellant is competent to report symptoms capable of lay observation, such as left knee pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As the VA examiner did not consider the appellant's competent assertion of continuity of left knee pain since service, a new opinion is necessary to determine the etiology of his left knee disability. Regarding the issues of entitlement to service connection for patellofemoral syndrome of the right knee, sinusitis, a skin disability of the lower extremities to include venous stasis dermatitis, and hemorrhoids, the Board finds these issues need to be remanded for the issuance of a statement of the case (SOC). In a July 2011 rating decision, the RO denied the appellant's claims for entitlement to service connection for patellofemoral syndrome of the right knee, maxillary sinusitis, a skin disability of the lower extremities to include venous stasis dermatitis, and hemorrhoids. In August 2011, the appellant filed a notice of disagreement with the July 2011 rating decision. The record does not reflect that a statement of the case has been issued in response to the appellant's notice of disagreement pursuant to 38 C.F.R. § 19.26 regarding the claims. In this situation, the Court has indicated that the proper action is to remand the issue to the agency of original jurisdiction (AOJ) for appropriate action. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999) ("Thus, the next step was for the RO to issue an SOC on the denial of the . . . claim, and the Board should have remanded that issue to the RO, not referred it there, for issuance of that SOC."). As such, the Board finds that these issues should be remanded for the issuance of a statement of the case by the AOJ. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. Attempt to obtain the records, if any, from the appellant's reported hospitalization and/or surgery for a left knee condition in service at the Perrin Air Force Base hospital. See October 2009 VA examination report. If no records are available, the claims file must indicate this fact. 2. After any records obtained have been associated with the claims file, provide the appellant's claims file to an appropriate VA clinician to provide an opinion as to whether the appellant's left knee disability is at least as likely as not (likelihood of at least 50%) related to service. For purposes of the opinion, the VA clinician should assume that the appellant's statements that he has had left knee pain since service are credible. See July 2008 letter from Dr. M.L.C. The VA clinician is requested to provide a thorough rationale for any opinion provided. The clinician should review the claims folder and this fact should be noted in the accompanying medical report. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. If the clinician determines that another examination is necessary to provide an opinion, such should be accomplished. 3. Provide the appellant with a statement of the case as to the issues of entitlement to service connection for patellofemoral syndrome of the right knee, entitlement to service connection for maxillary sinusitis, entitlement to service connection for a skin disability of the lower extremities to include venous stasis dermatitis, and entitlement to service connection for hemorrhoids. The appellant should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of these issues to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). If a timely substantive appeal is not filed, the claims should not be certified to the Board. 4. Thereafter, readjudicate the issue on appeal of entitlement to service connection for a left knee disability. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. 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). 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. 2011). _________________________________________________ MILO H. HAWLEY 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).