Citation Nr: 1311066 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 09-12 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection for a bilateral knee disorder. 3. Entitlement to a compensable disability rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran served on active duty from June 1970 to August 1978. The Veteran's appeal concerning his knees comes before the Board of Veterans' Appeals (Board) from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the Veteran's petition to reopen his claim of entitlement to service connection for a bilateral knee disorder. The Veteran's remaining appeals come before the Board from an October 2007 rating decision of the VA RO in Houston, Texas, which reopened the previously denied claim of entitlement to service connection for a lumbar spine disorder, and continued the noncompensable disability rating for the service-connected bilateral hearing loss. In January 2012, the Veteran testified at a Board hearing before the undersigned at the RO in Houston, Texas (Travel Board hearing). A transcript of the hearing has been associated with the claims file. In June 2012, the Board reopened the issues of service connection for bilateral knee disorder and low back disorder and remanded the remaining issues for further development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Regarding the remaining claims on appeal, the Board finds that certain development must be accomplished prior to any final determination by the Board. Initially, in the prior Board remand, the Board directed the RO to obtain recent outpatient treatment records from November 2007 to the present from the VA Medical Center (VAMC) in San Antonio, Texas. Although in a supplemental statement of the case issued in January 2013, the RO indicated that it had reviewed treatment records through December 2012 from the San Antonio VAMC, these records have not been associated with the claims file. A review of the Virtual VA electronic record also shows that these records have not been included. Thus, in order to comply with the Board's June 2012 remand, the RO must take additional action to obtain VA treatment records from November 2007 to the present. See Stegall v. West, 11 Vet. App. 268 (1998). Moreover, a July 2012 VA examination report with respect to the bilateral knees and low back showed that the Veteran reported receiving Social Security Administration (SSA) disability benefits in 2012 for his back and knees. However, it does not appear that the Veteran's SSA records have been requested. Thus, the RO should obtain the administrative decisions pertaining to the Veteran's claim and any underlying medical records from the SSA. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996) (VA is required to obtain evidence from the SSA, including decisions by the administrative law judge); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In the June 2012 remand, the Board also directed the RO to afford the Veteran with an appropriate VA examination for his bilateral knee disorder and low back disorder. The examiner was directed that for purposes of the examination and opinion to assume that the Veteran's lay statements are competent and credible to describe the circumstances, conditions and hardships of his active military service, since the Veteran is in receipt of the Combat Infantry badge (CIB) and, as such, is a combat Veteran in accordance with 38 U.S.C.A. § 1154(b). At his Board hearing, the Veteran reported falling out of a helicopter during his military service in the Republic of Vietnam, which may have caused his current bilateral knee disorder and low back disorder. The Veteran also described the arduous terrain the Veteran served on during his service in the Central Highlands in Vietnam as well as having to carry gear that weighed between 65 and 85 pounds, and the impact of such service on his back and knees. In July 2012, the Veteran was afforded a VA examination. The examiner opined that neither the bilateral knee disorder nor low back disorder were incurred in or caused by service. However, the opinions were based on the fact that there was no indication of treatment for either disorder documented in the service treatment records. Thus, it appears that the examiner did not assume for purposes of the examination that the Veteran's report of in-service injuries to his back and knees was credible as instructed by the Board. Given this deficiency, this opinion is insufficient for appellate review and the case must be returned for an additional opinion. Stegall v. West, 11 Vet. App. 268 (1998). Lastly, at the July 2012 VA examination, the Veteran reported that he injured his knee on the job with City of San Antonio Maintenance and received workman's compensation. The AMC/RO should undertake appropriate action to obtain a copy of the determination associated with the Veteran's award of workman's compensation and copies of all medical records underlying that determination. Accordingly, the case is REMANDED for the following actions: 1. Obtain all pertinent VA outpatient treatment records from the San Antonio, Texas, VAMC since November 2007 to the present that have not been secured for inclusion in the record. If no additional medical records are located, a written statement to that effect should be requested for incorporation into the record. 2. Contact the Social Security Administration and obtain copies of all administrative decisions (with associated medical records) pertaining to any claim for disability benefits by the Veteran. 3. Undertake appropriate action to obtain the Veteran's workman's compensation award, and any medical records underlying that determination. 4. Thereafter, the RO/AMC should ask the July 2012 VA examiner who conducted the orthopedic examination of the knees and back to provide an addendum medical opinion, or if the VA examiner determines that it is necessary, schedule the Veteran for an appropriate VA examination to ascertain the etiology of his current bilateral knee disorder and lumbar spine disorder. The VA examiner should thoroughly review the Veteran's VA claims file. The VA examiner should note that this action has been accomplished in the VA examination report. For purposes of this examination/opinion request, the examiner is to assume that the Veteran fell out of a helicopter during his military service in the Republic of Vietnam during which time he sustained injuries to his knees and low back notwithstanding the fact that there is no official record of such injuries in service . Also, the examiner must consider the Veteran's theory that the arduous terrain the Veteran served on during his service in the Central Highlands in Vietnam as well as having to carry gear that weighed between 65 and 85 pounds injured his back and knees. In light of the foregoing, the VA examiner is requested to specifically address the following: (a) Is it at least as likely as not (a 50 percent probability or greater) that the currently diagnosed bilateral knee disorder and lumbar spine disorder were incurred during the Veteran's period of service? (In other words, what is the likelihood that the pathology associated with the Veteran's knees and low back is consistent with the type of "fall" injury and "wear and tear" injury the Veteran contends occurred during his combat service.) The term "as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both 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. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. If the original examiner is unavailable, then the request should be directed to another appropriate examiner. 5. Thereafter, re-adjudicate the Veteran's pending claims in light of any additional evidence added to the record. If any benefits sought on appeal remain denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The appellant 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). 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). _________________________________________________ TANYA A. SMITH 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).