Citation Nr: 1304876 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-13 926A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to service connection for a bilateral knee disability. 3. Entitlement to service connection for a bilateral shoulder disability. 4. Entitlement to service connection for a bilateral wrist disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from April 1997 to April 2001. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2009 rating decision by the RO. In this decision, the RO, inter alia, denied service connection for right ankle and bilateral knee, shoulder, and wrist disabilities. In August 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in March 2010. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2010. Supplemental statements of the case (SSOCs) were issued in December 2011 and April 2012. In June 2012, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. In addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the Veteran's claim. Evidence in the electronic folder is either duplicative of evidence already in the paper claims file, or is not relevant to the issue on appeal. For reasons expressed below, the matters remaining on appeal are being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on his part, is required. FINDING OF FACT By way of a statement received by the undersigned prior to the June 2012 hearing, the Veteran withdrew his appeal with respect to the issue of entitlement to service connection for a bilateral wrist disability. CONCLUSION OF LAW The criteria for withdrawal of a substantive appeal by the Veteran with respect to the issue of entitlement to service connection for a bilateral wrist disability have been met. 38 U.S.C.A. §§ 7104, 7105(d)(5) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204(c). Here, the Veteran indicated in a statement received by the undersigned prior to the June 2012 hearing that he wished to withdraw his appeal with respect to the issue of entitlement to service connection for a bilateral wrist disability. As such, there remain no allegations of errors of fact or law for appellate consideration with respect to the issue of entitlement to service connection for a bilateral wrist disability, and the appeal with respect to this issue and it must be dismissed. ORDER The claim for service connection for a bilateral wrist disability is dismissed. REMAND The Veteran, to include in sworn testimony to the undersigned, contends that current right ankle and bilateral knee and shoulder disabilities are the result of the rigors of his active duty service, in particular, participation in the Long Range Surveillance Leaders (LRS) program. Confirmation of the Veteran's participation in this program is confirmed by his military education as listed on his DD Form 214. The STRs do not reflect any contemporaneous treatment for right ankle, knee, or shoulder disabilities, although the January 2001 medical assessment noted that the Veteran was treated for a bruised knee at one point after an airborne operation. This assessment also reflected treatment for a twisted ankle, likely a reference to a July 2000 STR depicting treatment for a twisted left ankle. The first post-service reference to the disabiities for which service connection is claimed is contained in the Veteran's original application for VA benefits filed in July 2008, wherein he reported that he sustained right ankle and knee disabilities while performing airborne operations and shoulder damage as a result of marching with backpacks weighing in excess of 100 pounds. He also attributed the shoulder injury to a fall in service that resulted in treatment for a head injury. [STRs dated in April 1999 do reflect treatment for a head injury from a fall but contain no reference to a shoulder disability or the other disabilities for which service connection is claimed.] In a statement received in conjunction with his substantive appeal, as well is in sworn testimony to the undersigned, the Veteran explained that the reason that the STRs did not document the injuries at issue was because a medic assigned to his LRS program would provide any necessary treatment for all but the most serious injuries but would make no record of such treatment. Confirmation of the above assertion of the Veteran is of record in the form of a statement received in April 2010 from the individual identified by the Veteran as the medic attached to his LRS unit. In this statement, this individual indicated that he served in the same LRS unit as the Veteran on a daily basis and that his duties were to provide daily medical care, to include unit sick call and event medical coverage. He indicated that the LRS training included prolonged marches while carrying over 100 pound rucksacks; over 15 airborne operations; long term dynamic and static surveillance operations that required prolonged (up to five days) of kneeling; and fast-rope operations. The medic indicated that some of these operations resulted in numerous injuries that were either treated on-site or at the nearest Medical Treatment Facility. He said that the Veteran had to be treated for a shoulder injury as a result of a free fall from over 15 feet while participating in a fast-rope operation. As the Veteran testified to the undersigned, this medic indicated that he sent the Veteran to Fort Polk, Louisiana, for treatment for the shoulder injury. He also stated that he treated the Veteran for sore knees, to include a grade II sprain on one occasion which he does not remember documenting. Additional statements supporting the Veteran's assertions from two individuals who reported they served with him in the LRS program were also received in April 2010. These statements corroborate the Veteran's accounts of the strain on the shoulders and back due to having to march with packs weighing well in excess of 100 pounds and that the nature of the LRS program, in which an entire detachment would be unable to train if one man was unable to train due to an injury, dictated that injuries were either went untreated or were treated "in the field" by the same individual identified by the Veteran as the medic attached to their unit. One of the Veteran's fellow LRS comrades reported that he remembered the Veteran complaining about pain in his knees and ankles due to a hard landing after his first jump during Airborne School. Also submitted in April 2010 was a statement by the Veteran's father indicating that the Veteran complained about pain in his shoulders, knees, and ankles after completing his parachute training. He also noted that the Veteran complained about pain in the shoulders during the "next couple of years" while making long marches carrying packs weighing over 100 pounds. Following an April 2009 VA examination, the Veteran was diagnosed with chronic anterior tibiofibular strain with laxity in the right ankle; bilateral subacromial bursitis and tendinitis in the shoulders; and bilateral chondromalacia patella in the knees. The Veteran provided a history to the examiner similar to that described above linking these injuries to the rigors of service, to include carrying heavy packs and jumps during airborne training, and it was the examiner's conclusion that it was at least as likely not that the right ankle and bilateral shoulder and knee disabilities shown at the examination were related to the Veteran's military service. The RO asked the examiner to complete an addendum to his April 2009 VA opinion due to the fact that he offered no objective facts or medical rationale supportive of his opinion, particularly in light of the fact, as stated by the RO, that there was no indication of relevant treatment or pain for several years after service. Such an opinion was completed in June 2010, with the examiner finding that it was less likely as not that the Veteran's present right ankle, knee, and shoulder disabilities were the result of service. He based this conclusion on the fact that his review of the claims file "for available ortho STR's . . . did actually fail to provide adequate baseline scientifically orthop[]edically relevant evidence that adequately correlates present shoulder[,] knee and ankle ortho complaints to remote, briefly documented ortho problems, (knee), in the military. By way of explanation for his previous opinions, he noted the Veteran's "very detailed" description of his miliary experiences and injures and that this description was in a manner that was "completely believable." He also stated that he was able to correlate the military experiences described by the Veteran with his own military service in a similar Army "specialty unit." The Board notes that while the record also includes a February 2012 opinion from a private physician linking current right ankle disability to a purported in-service injury to the same ankle, the STRs referenced by this physician actually pertain to the left ankle. As such, the opinion does not provide an adequate basis for a grant of service connection for right ankle disability. Reonal v. Brown, 5 Vet. App. 458 (1993). Given the testimony to the undersigned as to treatment for a shoulder disability in Fort Polk, Louisiana, as well as the statement received from the medic attached to the Veteran's unit received in March 2010 indicating that such treatment was indeed provided, the Board finds that VA is obligated to obtain these records, should they exist. 38 U.S.C.A. §5103A(c)(1); 38 C.F.R. § 3.159(c)(2)(3). In rendering his June 2010 opinion, the examiner based his opinion, at least in large part, on the lack of relevant STRs, but did not discuss the relevance or import of the Veteran's explanation, and statements supporting this explanation from the Veteran's medic and service comrades, as to why this was the case; namely, that the nature of the Veteran's service in the LRS program either precluded medical treatment or did not allow for formal documentation of such treatment. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner relied on lack of evidence in service medical records to provide negative opinion). As such, and given the nature of the evidence and supporting statements as set forth above, the Board finds that the evidence currently of record is inadequate, and that further medical findings responsive to the entirety of the contentions and supporting statements of record by way of a medical examination are needed to resolve the claims on appeal. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). While these matters are on remand, to ensure that all due process requirements are met, and that the record before the physician is complete, the RO should give the Veteran another opportunity to present information and/or evidence pertinent to the claims remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran furnish appropriate current authorization for the RO to obtain records from any pertinent private treatment. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the remaining claims on appeal. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should contact the National Personnel Records Center (NPRC) and request a search for any separately stored records associated with treatment for a shoulder disability in 1999 or 2000 at Fort Polk, Louisiana. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. In its letter, the RO should specifically request that the Veteran furnish appropriate current authorization for the RO to obtain records from any pertinent private treatment. The RO should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained or do not exist, the RO should notify the Veteran of the records that were not obtained or that do not exist, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or response(s) from each contacted entity have been associated with the claims file, or an appropriate time period for the Veteran's response has expired, the RO should arrange for the Veteran to undergo VA examination of the right ankle, knees, and shoulders. The entire claims file must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report) and all clinical findings should be reported in detail. The physician should clearly identify all current disability(ies) affecting the right ankle, the knees, and the shoulders. Then, with respect to each such diagnosed disability, the physician should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that such disability had its onset in or is/was otherwise medically related to service, to include the rigors of the described service in the LRS program. In rendering the requested opinion, the physician should specifically consider all in-service and post-service treatment records; the explanation by the Veteran and supporting statements from his medic and service comrades that the nature of the Veteran's service in the LRS program either precluded treatment or the formal recording of medical complaints or treatment that was provided; and the Veteran's statements describing continuity of right ankle, knee, and shoulder symptoms from service to the present time. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached in a printed (typewritten) report. 4. To help avoid another remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims remaining on appeal in light of pertinent evidence and legal authority. 6. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate SSOC that includes citation to and discussion of any additional legal authority considered, along with clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs