Citation Nr: 1310619 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 10-46 941 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a left elbow disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant (the Veteran) is represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from September 1996 to June 2007. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2010 rating decision of the RO in Nashville, Tennessee. The Board notes that there were several adjudications of these claims within the span of the appeal period. The claims were initially denied in an April 2009 rating decision. The Veteran requested reconsideration of the claims, which were again denied in May 2009. The RO then reconsidered the claims on its own motion in April 2010. In the April 2010 Notice of Disagreement, the Veteran specifically identified the May 2009 decision as the one he intended to appeal. As all of the referenced decisions were sent within one year of receipt of the Notice of Disagreement, the Board interprets the Notice of Disagreement as referring to the earliest adjudication in April 2009. As there is no prior final denial, there is no requirement of reopening based on new and material evidence. In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claims. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c), (d) (2012). In order to establish service connection for a claimed disorder, generally, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran's service treatment records document treatment in October 1998 for a kick or kicks to the right leg while playing soccer. The diagnosis was soft tissue injury. The Veteran was treated in September 2001 for a right knee injury incurred while playing football. The diagnosis was a strained medial collateral ligament. The Veteran was treated in October and December 2005 for a left elbow sprain resulting from a fall while navigating an obstacle course. An April 2010 private treatment report reveals diagnoses of new sprain of the elbow and new strain/sprain of the knee. The report indicates that the diagnoses apply to complaints of the left elbow and both knees. The Veteran has not been provided a VA examination/opinion regarding these claims. This case presents certain medical questions which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). These questions concern the relationship, if any, between any current disability of the left elbow, left knee, and/or right knee and his military service. These questions must be addressed by an appropriately qualified medical professional. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting 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 the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the factor of relationship of current disability to service, the United States Court of Appeals for Veterans Claims has indicated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83; see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service). Given the competent evidence of injuries in service to the left elbow, and lower extremities, and the Veteran's reported history and current symptoms of left elbow and knee disability, the Board finds that a VA examination with medical nexus opinion is required to determine whether any current symptoms are manifestations of chronic disability that are causally related to service. Accordingly, the issues of entitlement to service connection for a left elbow disability, a left knee disability, and a right knee disability are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA evaluation/examination to determine the nature and etiology of his claimed disorders of the left elbow, left knee, and right knee. The relevant documents in the claims file should be made available to the VA clinician. The clinician is directed to consider the Veteran's reported history of injuries and symptoms in service and current symptoms. For the purposes of the examination, the Veteran's service treatment records document treatment in October 1998 for a kick or kicks in the right leg while playing soccer. The diagnosis was soft tissue injury. The Veteran was treated in September 2001 for a right knee injury incurred while playing football. The diagnosis was a strained medial collateral ligament. The Veteran was treated in October and December 2005 for a left elbow sprain resulting from a fall while navigating an obstacle course. The examination report for service separation in March 2007 reveals normal clinical findings for the upper and lower extremities. The Veteran completed a report of medical history in conjunction with the examination and he checked boxes indicated no history of knee trouble, no history of swollen or painful joints, no history of joint deformity, and no history of impaired use of arms, legs, hands, or feet. The Veteran was discharged from service in June 2007. After service, the Veteran applied for service connection in February 2009. An April 2010 private treatment report reveals diagnoses of new sprain of the elbow and new strain/sprain of the knee. The report indicates that the diagnoses apply to complaints of the left elbow and both knees. For each currently supported diagnosis of the left elbow, left knee, and/or right knee, the VA clinician is requested to offer an opinion as to whether such diagnosis is at least as likely as not (i.e., to at least a 50-50 degree of probability) related to service. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. If the requested medical opinion cannot be given, the VA clinician should state the reason(s) why. 2. Readjudicate the remanded issues of entitlement to service connection for disabilities of the right knee, left, knee, and left elbow. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the associated claim. See 38 C.F.R. § 3.655 (2012). These issues 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). _________________________________________________ MARK W. GREENSTREET 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).