Citation Nr: 1303756 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 10-14 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for degenerative disc disease. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active military duty from February 1981 to March 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In December 2011 the Veteran and his spouse testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 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 Having reviewed the entire claims file, the Board finds that additional development is required before deciding the claims of service connection for a right knee disorder and degenerative disc disease. The Veteran contends that he has right knee and low back disabilities as a result of being crushed under a building during the October 1983 Beirut bombing during military service. Service treatment records reflect complaints of right knee pain prior to October 1983 and a report of back pain on separation examination. A May 1981 emergency record reflects that the Veteran complained of pain in the right lower thigh for one day. On examination there was slight swelling above the right knee and moderate pain to the touch. The assessment was probable tendonitis. The assessment of a December 1982 follow-up visit was right knee tendonitis. The remainder of the service treatment records was silent for complaints, diagnosis, or treatment related to right knee or back problems. Service treatment records included treatment for a nondisplaced fracture of the right distal radius, separation of the right sacro-iliac joint, and fracture of the right symphysis pubis sustained during the October 1983 terrorist attack on the Marine Barracks in Beirut, Lebanon. In a March 1984 separation report of medical history, the Veteran endorsed currently or previously having swollen or painful joints, cramps in his legs, broken bones, and recurrent back pain. He denied having "trick" or locked knee. A physician's summary described the pelvic and right wrist fractures the Veteran sustained in the bombing and noted that he had fully recovered. On separation examination the same day, clinical evaluation of the spine was reported as normal. The boxes pertaining to whether clinical evaluation of the lower extremities was normal or abnormal were left blank. A separate, narrative report of the discharge examination indicated that the Veteran believed he had recovered from his anterior pelvic fracture and right wrist fracture problems except for pain his pelvis and hips after exercise. Following a post-service November 1984 VA examination, the RO granted service connection for ligamentous injury to the right wrist involving the radial carpal joint dorsal with some carpal subluxation at the wrist (a right wrist disability) and for old pubic rami fractures with probable disruption of the symphysis pubis (a pelvic fracture disability). The Veteran's claim for right and left knee disabilities and a back disability was received in January 2009. He stated that after the Beirut attack, he was digging concrete out of his back for years. He also reported that "over the years, [his] injuries ha[d] shown through during many activities." He described constant trouble with his back and legs. In support of his claim, the Veteran submitted a November 2008 private treatment record from R. Bowles, M.D. The Veteran indicated that he worked as a police officer and had had problems with his left knee for over ten years. He described injuring it playing football, having a motorcycle accident, and also having some injuries to it during military service. He did not identify any right knee problems. During a new patient VA primary care visit in December 2008, the Veteran described low back and left knee pain. He did not identify right knee problems. He appeared for a VA examination in August 2009. The diagnosis included right knee patellofemoral syndrome and degenerative disc disease of the lumbosacral spine with disc bulges. The examiner essentially opined that each disability was not related to service because there was no documentation of these disabilities since his complaints of knee pain during service and his report of back pain at separation from service. In a November 2009 rating decision, the RO granted service connection for osteoarthritis of the left knee and assigned a 10 percent rating effective January 13, 2009. The Board notes that since submitting his claim for service connection for right and left knee and back disorders in January 2009, the Veteran has asserted that his claimed disorders were due to being crushed during the October 1983 Beirut bombing. However, during the December 2011 hearing, the Veteran's representative asserted that the claimed right knee disorder was due to the service-connected left knee osteoarthritis and that the back disorder was secondary to his service-connected left knee osteoarthritis or his service-connected right pubic rami fractures. On remand, the RO/AMC should provide the Veteran with VCAA notice describing the information and evidence required to establish entitlement to service connection on a secondary basis. The RO/AMC should also arrange for the Veteran to undergo an additional VA examination to obtain a medical opinion as to whether his claimed right knee and low back disabilities are related to service or to a service-connected disability. In February 2012, the Veteran submitted additional private medical evidence from R. Bowles, M.D.; J. Aymond, M.D.; and J. McCrosson, M.D. Upon review of these records, it appears that they are not complete. Therefore, on remand the RO/AMC should advise the Veteran to submit all private treatment records from each of these medical providers, or authorize the RO/AMC to obtain them on his behalf. Finally, the RO/AMC should request current treatment records from the Charleston VA Medical Center dating from November 2009 to the present. See 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2012), are fully complied with and satisfied, including notification of what the evidence must show to substantiate the claim for service connection for right knee and back disorders on a secondary basis. 2. The RO/AMC should contact the Veteran and obtain the names and addresses of all medical care providers who treated him for a right knee or back disorder. The RO/AMC should attempt to obtain and associate with the claims folder any medical records identified by the Veteran that are not already of record. In particular, the Veteran should be advised to submit all private treatment records from R. Bowles, M.D.; J. McCrosson, M.D.; and J. Aymond, M.D; or authorize the RO/AMC to obtain them on his behalf. Additionally, relevant VA treatment records from the Charleston VA Medical Center dated from November 2009 through to the present should be obtained. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file and the Veteran and his representative notified of such. 3. After the above development has been completed to the extent possible, the RO/AMC should arrange for the Veteran to be scheduled for a VA orthopedic examination to evaluate the claimed right knee and low back disorders. The claims folder must be reviewed by the examiner as part of the examination. All indicated studies, tests and evaluations deemed necessary by the examiner should be performed. The results of such must be included in the examination report. Following a review of the claims file and physical examination, the examiner should identify all right knee and spine disorders found on examination. For each right knee disorder and each spine disorder found on examination, the examiner should respond to the following questions: a) Indicate whether it is at least as likely as not (a 50 percent or greater probability) that a right knee or spine disorder began in service or is otherwise medically related to military service. b) If a right knee or spine disorder found on examination did not begin in service or is otherwise not medically related to military service, indicate whether any diagnosed right knee or spine disorder is at least as likely as not (a 50 percent or greater probability) caused by the Veteran's service-connected left knee osteoarthritis or his right pubic rami fractures. If not caused by the left knee disability or right pubic rami fractures, then the examiner should opine whether any diagnosed right knee or spine disorder is permanently worsened beyond normal progression (aggravated) by the service-connected left knee osteoarthritis or right pubic rami fractures. If the examiner finds any right knee or spine disorder aggravated by left knee osteoarthritis or right pubic rami fractures, he/she should attempt to quantify the degree of aggravation. A complete rationale for all conclusions must be included in the report provided. (Any medical record reviewed and relied on by the examiner must be included in the claims folder). If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AMC/RO should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion with respect to any diagnosed skin disorder can be obtained). 4. The RO/AMC must ensure that the medical examination reports and opinions comply with this remand and the questions presented in the request. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 5. After undertaking any other development deemed appropriate the RO/AMC should re-adjudicate the issues on appeal. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ J. A. MARKEY 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).