Citation Nr: 1308237 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 10-10 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection for a bilateral knee disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1975 to September 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the file. The issue of service connection for disabilities of the low back, left arm, and neck has been raised by the Veteran in December 2011 but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. REMAND At a January 2013 hearing, the Veteran testified that he had been in receipt of benefits for unspecified disabilities from the Social Security Administration for at least 10 years. See Transcript, p. 18. There is no documentation in the file to show that records from the Social Security Administration have been sought. In light of the Board's duty to assist the Veteran with his claim, the case must be remanded to the RO so that the Social Security Administration decision and associated medical records may be obtained and incorporated into the claims file. 38 U.S.C. § 5103A. Regarding the claim of service connection for asthma, the Veteran underwent a VA examination in December 2009 and was diagnosed with interstitial lung disease. The examiner believed that "true asthma" was not present either during service or at the current time. Subsequently, in VA outpatient records added to the file, the Veteran was noted to have been seen for bronchial asthma for which albuterol was the prescribe medication. It appears that the record requires clarification as to the current nature and etiology of the Veteran's respiratory disorder. Regarding the claim of service connection for a bilateral knee disability, the Veteran underwent a VA examination in October 2008 to determine the nature and etiology of his bilateral knee disability. X-rays showed advanced degenerative joint disease of both knees. The examiner concluded that the Veteran's currently diagnosed disability was not caused by or a result of his military service, stating in part that a review of the claims file did not reveal any care for either knee in service. However, a review of the service treatment records shows that the Veteran was seen for a right knee injury in May 1976 and that at the time of his separation physical examination in July 1978 he reported a "trick" or locked knee on a report of medical history and the examination of the lower extremities showed mild chondromalacia, bilateral. Given that the examiner appeared not to have taken into account the significant facts of the case, the Veteran should undergo another examination to clarify the etiology of his bilateral knee disability. Since the issuance in March 2010 of a statement of the case regarding the bilateral knee disability and a supplemental statement of the case regarding asthma, the RO has associated additional, pertinent VA outpatient records dated from May 2010 to August 2012 with the claims file. Neither the Veteran nor his representative has waived the right to have the RO initially consider this evidence in accordance with 38 C.F.R. § 20.1304. Accordingly, the case is REMANDED for the following action: 1. Request records from the Social Security Administration in regard to the Veteran's application for benefits, the decision awarding benefits, and the records considered in deciding the claim for benefits. If the records do not exist or efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA examination by a pulmonologist to determine whether it is at least as likely as not (50 percent probability or higher) that any respiratory disease, to include asthma, is related to his period of service from October 1975 to September 1978, to include the documented complaint of trouble breathing in June 1977 and the Veteran's report of a history of asthma at the time of the separation physical examination in July 1978. The claims folder should be made available to the examiner for review. The examiner should consider the significant facts of the case as presented in the record, to include: service treatment records, the VA examination report of December 2009 wherein the examiner diagnosed interstitial lung disease and felt that the Veteran's symptoms in service and currently did not constitute "true asthma," VA outpatient records showing diagnosis and treatment (with albuterol) of bronchial asthma, and the Veteran's statements and testimony to the effect that he was told during service he had asthma and was given an inhaler and that his current asthma was related to service. In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against causation is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. 3. Schedule the Veteran for a VA examination by an orthopedist to determine whether it is at least as likely as not (50 percent probability or higher) that the currently diagnosed bilateral knee disability is related to his period of service from October 1975 to September 1978, to include the documented right knee injury in May 1976 and the finding of chondromalacia on the separation physical examination in July 1978. The claims folder should be made available to the examiner for review. The examiner should consider the significant facts of the case as presented in the record, to include: service treatment records, the VA examination report of October 2008, VA outpatient records showing treatment of degenerative joint disease of the knees and a need for a right total knee replacement, private records showing diagnosis of rheumatoid arthritis by E. Kenny, M.D., in March 2006, and the Veteran's statements and testimony to the effect that his knees hurt in service and progressively worsened after service. In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against causation is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. 4. After the above development is completed, adjudicate the claims of entitlement to service connection for asthma and a bilateral knee disability. If any benefits sought remain denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran 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 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). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2012).