Citation Nr: 1308469 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 10-29 534 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for cellulitis of the right knee. 2. Entitlement to service connection for a low back disorder, to include as secondary to a right knee disorder. 3. Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Charles Stalnaker, Attorney WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from April 2005 to May 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2012. A transcript of that hearing is associated with the claims file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. In this case, the Veteran has not been afforded a VA examination in connection with his claim for service connection for cellulitis of his right knee. His service treatment records document treatment for a knee sprain, which occurred during two separate falls. X-rays were normal, but the Veteran thereafter developed cellulitis of the right knee that did not affect the joint. At his hearing, the Veteran testified that he continued to have right knee pain since service and episodes of what he referred to as recurrences of cellulitis. An examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4)(i). Therefore, the Board finds that a VA examination and medical opinion are necessary for determining the nature and etiology of any cellulitis that may be present. With regards to his lumbar spine, the Veteran's service treatment records reflect a complaint of low back pain that radiated to the right leg. X-rays showed no fracture, dislocation, or spondylolisthesis. At his hearing, the Veteran testified that he continued to have back pain after service. He attributed it to his altered gait as a result of his right knee pain. Post-service treatment records also show that the Veteran injured his back on multiple occasions after service and noted a history of an untreated ruptured disk is documented on a June 2008 hospital form. Given the evidence of an in-service complaint and complaints after service, the Veteran should be afforded a VA examination to determine whether he currently has a low back disorder that is related to his military service or to a right knee disorder. With regards to his psychiatric condition, the Veteran's service treatment records show that the Veteran was seen in the emergency room once in service when he had an anxiety attack. At that time, he reported that he did not want to be in the Navy and that he could not tolerate boot camp. He was eventually evaluated and diagnosed with an adjustment disorder with mixed anxiety and depressed mood. The Veteran later testified in July 2012 that he still feels depressed and anxious. He felt that this was in part due to his knee pain. He submitted statements from his parents who indicated that the Veteran seemed depressed after service. Given the evidence of an in-service complaint and his complaints of symptoms after service, the Veteran should be afforded a VA examination to determine whether he has a current psychiatric disorder that is related to his military service or to a right knee disorder. Lastly, the Board notes that the Veteran indicated at his July 2012 hearing that he received additional private medical treatment from sources whose records are not in the claims file. The Veteran should be contacted and requested to provide appropriate releases to enable VA to obtain any outstanding private treatment records. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and request that he identify all sources of medical treatment for his right knee, low back, and psychiatric disorders. The Veteran should be requested to provide appropriate releases to enable VA to obtain those records which are not already in the claims file. All identified treatment records should be obtained, provided that the Veteran supplies appropriate releases. If treatment records are identified but cannot be obtained, efforts made to obtain the records should be documented in the claims file and the Veteran should be notified of VA's inability to obtain such records. 2. The Veteran should be afforded a VA examination to determine the nature and etiology of any cellulitis of the right knee that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current right knee disorders and specifically state whether the Veteran currently has cellulitis of the right knee. For each diagnosis identified, the examiner should state whether it is at least as likely as not that the current disorder is causally or etiologically related to the Veteran's military service, including his symptomatology therein. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The Veteran should be afforded a VA examination to determine the nature and etiology of any lumbar spine disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current lumbar spine disorders. For each diagnosis identified, the examiner should state whether it is at least as likely as not that the current disorder is causally or etiologically related to the Veteran's military service, including his symptomatology therein. In so doing, he or she should also discuss whether the Veteran's symptomatology in service may have made him more susceptible to subsequent post-service injuries. For each diagnosis identified, the examiner should also opine whether it is at least as likely as not the disorder was either caused by or permanently aggravated by a right knee disorder. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The Veteran should be afforded a VA examination to determine the nature and etiology of any psychiatric disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current psychiatric disorders. For each diagnosis identified, the examiner should state whether it is at least as likely as not that the current disorder is causally or etiologically related to the Veteran's military service, including his symptomatology therein. He or she should also opine whether it is at least as likely as not the disorder was either caused by or permanently aggravated by a right knee disorder. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After completing these actions, the RO should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 6. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and/or argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until he is notified. 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). _________________________________________________ JESSICA J. WILLS 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).