Citation Nr: 1310061 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 08-16 587 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1979 to November 1979. He had prior service in the National Guard, with an active duty assignment dating from July 1978 through December 1978. This matter is before the Board of Veterans' Appeals (the Board) on appeal of a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a Board hearing before the undersigned in July 2010. A transcript of that hearing has been associated with the Veteran's VA claims file. Subsequently, in a June 2012 decision, the Board reopened the Veteran's claim and remanded it for additional evidentiary development. After such was accomplished, the Appeals Management Center (AMC) readjudicated the claim on the merits in a January 2013 Supplemental Statement of the Case (SSOC). The Veteran's claims file has been returned to the Board for further appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the AMC, in Washington, DC. REMAND The Veteran seeks service connection for a left knee disability. Before the Board can adjudicate this claim on the merits, additional development is required. I. Social Security Administration Records The record indicates that the Veteran filed a claim for disability compensation with the Social Security Administration (SSA) that was pending in March 2009. See March 13, 2009 VA Domiciliary Note. The record does not reflect that any request has been made for SSA records or that a determination has been made regarding whether the Veteran is actually receiving SSA disability benefits. Any records associated with that claim, particularly medical records, could shed additional light on the issue currently before the Board. As such, these records should be obtained for consideration in connection with the instant appeal. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (finding that as long as a reasonable possibility exists that SSA records may be relevant to a Veteran's claim, VA must assist him or her in obtaining the records); see also Murincsak v. Derwinski, 2 Vet. App. 363 (1992) (holding that VA's duty to assist includes obtaining records from SSA and giving them appropriate consideration and weight in determining whether to award or deny VA disability compensation benefits). II. VA orthopedic examination In essence, the Veteran contends that his left knee disability had its onset in, or is otherwise related to his active duty service. More specifically, he asserts that while serving on Advanced Individual Training (AIT) in October 1978, he fell from lateral bars on a training course, and injured his knee on a jagged edge of one of the bars, requiring hospital treatment with multiple stitches. See VA Form 21-526, received December 1987; March 31, 2005 and January 14, 2008 Statements in Support of Claim; Board Hearing Tr. at 3. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). As discussed in the Board's June 2012 decision, the Veteran's personnel records indicate he performed service from July 1978 to December 1978 labeled "AD," which stands either for "active duty," or "active duty for training" (ACDUTRA). The Veteran's claimed in-service left knee injury, occurring while on AIT in October 1978, falls squarely within this active duty period. For the purposes of this case, whether the Veteran's service from July 1978 to December 1978 was active duty or ACDUTRA is of no consequence, as the term "active military service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty . . . ." 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2012); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). In McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), the United States Court of Appeals for Veterans Claims (Court) made clear that VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. The first criterion for a medical examination is met, as current VA treatment records show a diagnosis of degenerative joint disease of the left knee. See, e.g., March 31, 2009 VA Physical Medicine Rehabilitation Education Consult (noting mild degenerative joint disease in the patellofemoral and femorotibial joints). As to the second criterion, as noted above, the Veteran reports that he fell while participating in AIT in October 1978, requiring immediate medical treatment and multiple stitches for his left knee at the Army hospital in Fort Benning, Georgia. Pursuant to the Board's prior remand instructions, VA requested the Veteran's treatment records from the Fort Benning Army Hospital for the time period under review, but no such records were located. VA also obtained the Veteran's National Guard records from the Adjutant General of Texas dating from April to December 1978, but they fail to document treatment for any left knee injury. Significantly however, a recently-obtained copy of the Veteran's January 12, 1979 examination upon entrance into active duty service in the Regular Army specified that although evaluation of the Veteran's lower extremities was "normal," the Veteran did in fact have identifying body marks or scars, with an "S" notation on the full body diagram at the left knee, potentially indicating the presence of a scar or stitches. At this time, the Board finds the testimony of the Veteran credible to the extent that he asserts that he fell during a period of AIT in 1978 and injured his left knee. Indeed, the Veteran is competent to report his own observable symptomatology (see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)), and his service records confirm the presence of left knee scars or stitches in January 1979 that were not identified in the record at any time prior. As such, the Board finds that the second criterion for a medical examination has been met. As to the third criterion, the Veteran's testimony also suggests that he has had problems with knee pain during service that continues to the present day. In March 2009, he specifically reported to a VA physician that he fell years ago and hit his knee on metal bars, requiring stitches to repair the tear, and has had knee pain since that time. See March 31, 2009 VA Physical Medicine Rehabilitation Education Consult. He also testified that his VA physician, Dr. D., has related his left knee problems to his military service (see Board Hearing Tr. at 6), although the Veteran's ongoing VA treatment records, to include those prepared by Dr. D., do not include documentation of such findings. In any event, such evidence suggests that the Veteran's symptoms may be related to the symptoms he described experiencing during service, meeting the third criterion for an examination. Crucially, no medical opinion of record links the Veteran's left knee disability to his in-service injury, or rules out any such connection. Therefore, the Board finds that there is insufficient competent medical evidence on file for VA to make a decision on the claim at this time. As such, the Veteran should be scheduled for an examination, and a VA medical opinion addressing the etiology of the Veteran's left knee disability should be obtained. See McLendon, 20 Vet. App. at 81. The Board wishes to make clear that the Veteran's January 1979 examination report indicated the presence of a left knee scar or stitches, and did not note the existence of any preexisting left knee disability. As noted above, the report instead documented a "normal" clinical evaluation of the lower extremities. The Veteran has not asserted that he had a left knee disability that preexisted his period of active service beginning in January 1979, nor has he suggested that any event or injury occurred during such service that aggravated any preexisting condition. As such, the inquiry in this case simply involves whether the Veteran's current disability is as likely as not related to an event or injury sustained while on active duty, to include his reported 1978 AIT left knee injury. Accordingly, the case is REMANDED for the following action: 1. With any needed assistance from the Veteran, obtain from SSA records pertinent to any claim made by the Veteran for disability benefits as well as the medical records relied upon concerning that claim. If such records are unavailable, the claims file should be clearly document to that effect. 2. After completing the development outlined in item 1 above, schedule the Veteran for an examination to determine the nature and etiology of his current left knee disability. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the examiner should identify any left knee disability present. For each identified left knee disability, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such left knee disability that had its onset in, or is otherwise related the Veteran's active service, to include the injury he sustained to his left knee during his period of AIT in October 1978. For the purposes of this opinion, the examiner should accept as true that the Veteran did in fact injure his knee in a fall during his period of AIT, while on active duty. If the examiner finds that the Veteran's current disability is unrelated to his service, the examiner should then discuss whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current left knee disability, degenerative joint disease, had its onset within the Veteran's first post-service year, from November 1979 to November 1980. See 38 C.F.R. § 3.309(a) (2012). A rationale for all opinions expressed should be provided. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ Donnie R. Hachey Acting 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).