Citation Nr: 1306006 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 08-13 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a bilateral ankle disability, to include gout. 2. Entitlement to service connection for bilateral knee disability, to include gout. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife. ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1964 to January 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in relevant part, denied the benefits sought on appeal. The Veteran and his wife testified at a hearing before an RO Decision Review Officer (DRO) in August 2008. A transcript of that hearing is of record. The Board previously remanded the Veteran's claims on appeal for further development in April 2010 and December 2010. For the reasons discussed below, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the further delay, it is necessary to pursue yet additional development to ensure that there is a complete record upon which to decide these claims so that the Veteran is afforded every possible consideration. In the Board's prior December 2010 remand, it specifically directed the RO/AMC to obtain a complete copy of outstanding VA treatment records related to the Veteran's claim. The Board specifically noted that more recent VA treatment records referenced by the August 2010 VA examiner had not been associated with the claims file and directed that records dated since June 2006 should be obtained. While VA treatment records dated from November 2006 to January 2011 were obtained, the Board notes that additional VA treatment records referenced by the August 2010 VA examiner still have not been associated with the claims file. Specifically, the VA examiner relied extensively on a report from an October 2002 VA rheumatology clinic consultation in which the Veteran apparently reported an onset of gout 15 years previous to the consultation. Later VA treatment records similarly note a diagnosis of gout made by VA in October 2002, further suggesting the existence of these absent records. Under the law, VA must obtain these outstanding treatment records. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Additionally, the Veteran was afforded a VA examination to determine the etiology of his claimed bilateral ankle and knee disabilities in August 2010. Upon review of the examination report, however, it appears that the VA examiner did not fully consider all medical and lay evidence of record in rendering an opinion with respect to the etiology of his claimed disabilities. Specifically, the VA examiner noted an instance of treatment for joint pain in February 1964 during the Veteran's active service and he noted that per the Veteran's report during is October 2002 VA rheumatology consultation, he did not experience gouty flare-ups until several years after service. The examiner further indicated that a key factor in opining that the Veteran's joint disability was not related to his service was that he was evidently only seen once for joint pain during his service and that he was not put on a profile for his pain and that he never complained about ankle or joint pain again during his service. Moreover, although the VA examiner referenced a bilateral knee and ankle disability, the examination report focused almost exclusively on gout. The examination report notes a diagnosis of mild degenerative joint disease of the knees, per X-ray evidence, and the record also reveals degenerative joint disease associated with foot pain. The examiner's etiology opinion does not appear to fully consider these other diagnoses. During his August 2008 DRO hearing, the Veteran provided testimony which appears to be in contrast to the VA examiner's findings. He testified that he was initially treated for pain in his ankles during basic training and that he could hardly walk at the time. He indicated that he was in the hospital for approximately two days and subsequently given a short period of light duty. He further testified that he frequently received treatment for his ankle and knee pain during his remaining period of active duty and that he continued to have problems with ankle and knee pain since his separation from service. He indicated that he received private, post-service treatment for his joint pain prior to seeking VA treatment, but that he believed records of that treatment were no longer available. The Veteran's wife additionally testified that the Veteran had been dealing with pain in the area of his feet since she had known him. She reported that as of that time, they had been married for 39 years. Additionally, the Veteran's service treatment records contain a March 1964 Medical Physical Profile Record issued by the United States Army Hospital in Fort Polk, Louisiana, indicating that the Veteran was returned to his unit and that he was physically qualified for duty. While the profile indicated that his previous physical profile was unknown, the document would appear to potentially substantiate the Veteran's contention that he was placed on light duty after his initial episode of joint pain. Affording him the benefit of the doubt, the Board concedes an instance of light duty relating to his ankle complaints. Given the foregoing evidence, the Board finds that the prior August 2010 VA examination report is inadequate for the purpose of determining the etiology of the Veteran's claimed disability. See 38 C.F.R. § 4.2 (2012) (stating that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be produced). Accordingly, on remand, the Veteran should be afforded a new and contemporaneous VA joints examination to obtain a new opinion regarding the nature and etiology of his claimed bilateral ankle and knee disabilities based on all the evidence of record. In remanding these claims, the Board notes that the Veteran is competent to report an onset of ankle and knee pain during his active service, and he is competent to report a continuity of symptomatology of these disabilities since his separation from service. See Washington v. Nicholson, 19 Vet. App. 363 (2005). The Veteran's wife is similarly competent to report observing the Veteran's outward symptoms or expressions of joint pain. Thus, the Board is primarily concerned with whether there is a continuity of symptoms since the incurrence of a claimed injury or disease in service, rather than with a continuity of treatment. See 38 C.F.R. § 3.303(b) (2012). Therefore, on remand, the VA examiner should recognize this lay evidence as potentially competent to support the presence of disability even where it is not fully corroborated by contemporaneous medical evidence, and must comment on this reported continuity of symptomatology. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Accordingly, the case is REMANDED for the following action: 1. Obtain a complete copy of the Veteran's VA treatment records from the Central Texas VA Healthcare System and the Houston, Texas, VA Medical Center dated prior to February 2005, including specifically any VA rheumatology clinic report dated in October 2002. All reasonable attempts should be made to obtain such records. If any requested records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002) and 38 C.F.R. § 3.159(e) (2012). 2. Thereafter, schedule the Veteran for an appropriate VA examination of his ankles and knees, including for gout. The claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination. The VA examination report should indicate that this has been accomplished. All necessary studies and tests should be conducted. The examiner should diagnose and describe all current ankle and knee disabilities found to be present, to include gout and degenerative arthritis. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current diagnosed ankle or knee disability, to include gout and degenerative arthritis, had its clinical onset during active service or is related to an in-service disease, event, or injury. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In providing the examination report, the examiner should specifically address the medical and lay evidence of record regarding the incurrence and subsequent treatment of the Veteran's claimed disabilities during his service and the lay evidence of a continuity of symptomatology of these disabilities since his separation from service. Specifically, the examiner should accept as fact that the Veteran was placed on a profile for ankle complaints on at least one occasion during active service. 3. Thereafter, review the claims file to ensure that the foregoing requested development has been completed. In particular, review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Finally, readjudicate the Veteran's service connection claims on appeal. If either claim remains denied, provide the Veteran and his representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return this appeal to the Board for further appellate review. The Veteran 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). These claims 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). _________________________________________________ ERIC S. LEBOFF 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. See 38 C.F.R. § 20.1100(b) (2012).