Citation Nr: 1311979 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 07-00 354A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a bilateral knee disability, to include osteoarthritis. 2. Entitlement to service connection for a left food disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1968, including service in the Republic of Vietnam. His awards and decorations include the Purple Heart Medal and Combat Infantryman Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which, in relevant part, denied service connection for bilateral knee osteoarthritis and for a left foot condition. During the course of the Veteran's appeal, the concern was raised as to whether his substantive appeal was timely filed. His VA Form 9 was sent by facsimile in August 2008, nearly two years after the October 2006 statement of the case (SOC) was issued. The Veteran's representative, however, provided evidence showing that reasonable attempts were made to submit his VA Form 9 in January 2007, within the one year appeal period following issuance of the February 2006 rating decision. In a supplemental SOC (SSOC) issued in June 2012, the RO indicated that his substantive appeal was accepted as filed on January 31, 2007. Any deficiencies in the timeliness of the substantive appeal are; thus deemed waived. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (holding that VA waived any objections as to the content of the appeal by treating the issue as on appeal for five years). The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2013. A transcript of that hearing is of record. The bilateral knee claim has been adjudicated as a claim for service connection for bilateral knee osteoarthritis. The record reveals additional diagnosed knee disabilities, including Baker's cyst, synovitis, meniscal tears, and bone spurs, some of which were diagnosed during the pendency of his appeal. The records indicate that he has since undergone total knee replacement surgery on both knees. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. The Veteran's claim is deemed to encompass any knee disability, regardless of diagnosis. 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 on his part. REMAND The Veteran acknowledges that he was treated for Osgood-Schlatter's disease of the knees prior to service, but contends that he had additional knee injuries in service, which aggravated the pre-existing disability. He contends that his left foot disability was incurred while he was cutting down trees when his axe hit a knot in the wood, ricocheted off the wood and subsequently cut four tendons in his left foot. This injury is documented in the service treatment records. Given the Veteran's record of combat, the provisions of 38 U.S.C.A. § 1154(b) are potentially applicable. These provisions create a presumption that a combat Veteran's reports of injuries sustained in combat are correct. Those provisions apply to an injury and the in-service consequences of that injury. Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012). The Veteran indicated during his February 2013 Board hearing that he had been receiving disability benefits from the Social Security Administration (SSA) since 2006, for his knees. VA has an obligation to obtain any SSA decisions and the underlying records considered in those decisions. See 38 C.F.R. § 3.159(c)(2) (2012); see also Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000). To date, however, a copy of the Veteran's SSA records has not been associated with the claims file. The Veteran also testified that there were relevant outstanding treatment records for the last couple of years. VA has a duty to obtain the outstanding records. 38 C.F.R. § 3.159(c)(1)-(2) (2012). VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 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 v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. The service treatment records document a left foot injury consistent with the Veteran's contentions. He reports that he has continued to experience pain and tenderness in the foot since service. An examination is needed to determine whether he has a current disability related to the in-service injury. The record shows a complicated history related to the Veteran's knee disabilities. He was afforded a VA examination, but as discussed below, the examination yielded an opinion that was not fully explained and did not consider the entire history of knee disability during service. The Veteran's service treatment records reveals that his private physician provided a letter in September 1966, just prior to his enlistment, indicating that he had been treating the Veteran for an arthritic condition involving both knees. The physician apparently believed the Veteran had an early manifestation of rheumatoid arthritis. The Veteran's September 1966 enlistment examination noted that after X-rays were taken of his knees, he was deemed to be in acceptable condition for service. The September 1966 X-ray report noted that he had hypertrophic changes resulting from previous Osgood-Schlatter's disease involving both anterior tibial tubercles, but that it was not thought to be clinically significant. This record does; however, show that Osgood-Schlatter's disease was identified on the examination when the Veteran was accepted for service and that the presumption of soundness would not be applicable. Cf. 38 U.S.C.A. § 1111 (West 2002). X-rays taken in November 1966 revealed that his anterior tibial tubercle were incompletely fused, which was compatible with prior Osgood-Schlatter's disease. In January 1967, the Veteran reported having severe pain in both knees. As of that time, he was put on multiple physical profiles to limit physical activities involving his knees. An August 1967 clinical record indicated that the Veteran should be assigned a different military occupational specialty (MOS) from his current assignment as a mortarman, which required a good deal of crawling. A permanent profile was suggested for no crawling or prolonged marching. A July 1967 clinical record from the 93rd Evacuation Hospital showed that the Veteran had struck something with his right knee which resulted in mild swelling over the tibial tubercle. The impression was a contusion of the right tibial tubercle. A February 1968 clinical record shows that the Veteran had incurred a shrapnel injury to his right knee, and that he was suffering from cellulitis. A March 1968 clinical report noted that the injury was much improved. An October 1968 clinical report from the U.S. Army Hospital in Fort Stewart, Georgia, reveals that the Veteran had lacerated the dorsum of his left foot severing the extension tendon to the second toe. He was admitted to surgery. In November 1968, his wound was noted to have healed well, and that his cast was being replaced. The Veteran testified during his February 2013 hearing that he sustained an injury to his knees as a result of being struck by debris during an explosive blast in Vietnam. He reported that he was medically evacuated, and that he could hardly walk at that time. Post-service private treatment records dated beginning in February 2000 reveals that the Veteran had received extensive treatment, including multiple surgical procedures, for bilateral knee disabilities over the last several years. His diagnoses have included osteoarthritis, synovitis, meniscal tears, and Baker's cysts of one or both knees. He underwent a total right knee replacement in October 2005. The Veteran was afforded a VA examination to determine the nature and etiology of his claimed knee disabilities in December 2005. The examiner noted that the Veteran was scheduled to undergo a total left knee replacement in May 2006. The Veteran reported having constant right knee pain since his October 2005 right knee replacement surgery. X-rays taken the day of the examination revealed a knee joint prosthesis in place of the right knee, with spurs present on the posterior aspect of the femoral portion. Spurs were also present on the anterior aspect of the patella. The left knee revealed joint space narrowing in the medial and femoropatellar compartments. Spurs were present on the patella, femur, tibia, and tibial spines. Abundant bone was present in the region of the anterior tibial tuberosity, and this was noted to possibly be due to spur formation and/or Osgood-Schlatter's disease. The diagnostic impression provided by the examiner was that the Veteran had a long history of Osgood-Schlatter's disease since childhood and then severe degenerative joint disease in both knees. The examiner additionally noted he had surgical repair of torn medical and lateral menisci and of a Baker's cyst in the right knee. Additionally, while he sustained a shell fragment wound to the right knee during combat in Vietnam, the wound healed with no residual and could not be found during the examination. The examiner provided the opinion that it was more likely than not that the Veteran had bilateral knee osteoarthritis secondary to his Osgood-Schlatter's syndrome and that the condition was not exacerbated or aggravated by his military service. She further opined that the shrapnel wound incurred during service healed with no residual effects. With respect to the meniscal tear in the right knee, the examiner opined that it was less likely than not that the meniscal tear was secondary to his remote shell fragment wound that healed without residuals and more likely than not that it was secondary to his overuse of the knees in his chosen occupation for many years. The VA examiner did not discuss the in-service knee treatment prior to the shrapnel injury of the fact that he was on profiles beginning in January 1967, several months after he entered service. The opinion is therefore, insufficient. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Similarly, while the examiner discussed her belief that the Veteran's meniscal tears were not related to his shell fragment wound, she did not discuss whether they are at least as likely as not related to any other in-service injury, disease, or event. See id. Accordingly, the case is REMANDED for the following action: 1. Obtain all decisions and underlying documents considered in those decisions with regard to the Veteran's application(s) for SSA disability benefits. Efforts to obtain the SSA decisions and underlying records must continue until they are obtained; unless it is reasonably certain that they do not exist or that further efforts would be futile. If requested records cannot be obtained, the Veteran should be informed, and told of the efforts made to obtain the records and of any further actions that will be taken with regard to his claims. 2. Ask the Veteran to provide authorization for VA to obtain records of his private treatment for knee or left foot disabilities from Orthopedic and Sports Medicine Consultants, Inc., in Middletown, Ohio, dated since October 2005, as well as any additional treatment records from other private healthcare providers that have treated his knees or claimed left foot disability. If the Veteran fails to provide needed authorizations, tell him that he should obtain the records and submit them himself. If any requested records cannot be obtained, inform the Veteran; also tell him what efforts were made to obtain the records and what additional actions will be undertaken with regard to his claims. 3. Schedule the Veteran for a new VA examination to evaluate whether he has a current knee or left foot disability that was caused or aggravated by service. The claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination. All necessary studies and tests should be conducted. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any bilateral knee disability identified since March 2005 had its onset during active service, or is related to any in-service disease, event, or injury, to include the incidents noted in the record where the Veteran sustained injuries to his knees, including a shrapnel wound, as a result of explosions during his service in Vietnam. The examiner should also provide an opinion as to whether the pre-existing Osgood-Schlatter's disease, at least as likely as not (50 percent or greater probability) underwent an increase in severity, beyond natural progression, during his active service. With respect to the Veteran's claimed left foot disability, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current left foot disability had its onset during active service, or is related to any in-service disease, event, or injury, to include the incident where the Veteran suffered at least one lacerated tendon as a result of cutting his foot with an axe. The examiner must provide reasons for these opinions, addressing the relevant medical and lay evidence of record. 4. Thereafter, the agency of original jurisdiction (AOJ) should review the claims file to ensure that the foregoing requested development has been completed. In particular, thoroughly review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. 5. If any claim on appeal remains denied, issue a supplemental statement of the case, and then return his appeal to the Board, if otherwise in order. The Veteran 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). These claims 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 D. Hindin 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. See 38 C.F.R. § 20.1100(b) (2012).