Citation Nr: 1313482 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 10-31 658A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral knee disability. 2. Entitlement to service connection for low back disability, to include as secondary to bilateral knee disability. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to February 1968. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2009 rating decision in which the RO denied service connection for bilateral knee and low back disorders. In December 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in July 2010, and the Veteran filed a timely substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in August 2010. In October 2011, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. The Veteran's Virtual VA electronic claims folder was reviewed in connection with this claim. For the reasons expressed below, the matters on appeal are being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Veteran served as a U.S. Army telephone lineman with service in Korea from May 1967 to June 1968. In a December 2009 notice of disagreement and at an October 2011 Board hearing, the Veteran reported that he made repeated safety line jumps from telephone poles to avoid snipers while working along the Demilitarized Zone in Korea. He contends that his bilateral knee disability is the result of injuries sustained in the jumps and that his low back disability is either due to injury associated with the in-service jumps or is secondary to his bilateral knee disability. Service records reflect that, in November 1966, at the time of entry on active duty, military examiners received a letter from a private physician noting that the Veteran had experienced minor trauma to the bilateral knees in an automobile accident one year earlier. The physician noted that the Veteran experienced recent episodes of knee pain and swelling causing a limp. Following examination, a military physician diagnosed mild chondromalacia patella of the knees, but found the Veteran fit for service. Although the Veteran's asserted knee injuries during service are consistent with his duties, service treatment records, and records associated with the September 1968 discharge physical examination are silent for reports by the Veteran or observations by the examiner of any complaints, findings, or diagnosis pertinent to the knees or low back. Post service, VA outpatient records dated through May 2010 show that the Veteran has been diagnosed and treated for osteoarthritis of both knees and lumbosacral spondylosis. During the Board hearing, the Veteran and his wife testified that the Veteran has had continuous problems-in particular, with his knees-since service. Given the evidence referenced above, and in the absence of any medical comment or opinion of record that addresses the medical relationship, if any, between current bilateral knee disability and service (to include on the basis of aggravation of pre-existing chondromalacia patella), or between the current lumbar spine disability and either service or knee disability, the Board finds that medical examination and appropriate etiology opinions are needed to resolve the claims on appeal. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Hence, the RO should arrange for the Veteran to undergo VA orthopedic examination of the knees and lumbar spine, by an appropriate physician at a VA medical facility. The Veteran is hereby advised that failure to report for the scheduled examination, without good cause, may result in denial of the claims. See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report for the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo examination, to ensure that all due process requirements are met, and that the record is complete, the RO should obtain and associate with the claims file all outstanding, pertinent records. As regards VA records, the claims file currently includes treatment records, reflecting care for the Veteran's knees and low back from the VA Medical Center (VAMC) in Mountain Home, Tennessee, dated through May 9, 2010. As this treatment appears to be ongoing, more recent records from this facility may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the above-noted facility all outstanding records pertaining to the Veteran's right hip since May 9, 2010. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any outstanding, pertinent private medical records. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claim for service connection for bilateral knee and low back disabilities. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the Mountain Home VAMC any outstanding, pertinent records of evaluation and/or treatment of the Veteran since May 9, 2010. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable the RO to obtain any additional evidence pertinent to the claim for service connection for a right and left knee and lumbosacral spine disabilities that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any outstanding, pertinent private medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, obtain all identified outstanding pertinent records of evaluation and/or treatment not currently of record, following the procedures set forth in 38 C.F.R. § 3.159 (2012). All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA orthopedic examination of the knees and lumbar spine, by an appropriate physician, at a VA medical facility. The entire claims file, to include complete copy of the REMAND must be made available to the individual designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. Knees - The physician should clearly identify all current knee disability(ies), to include osteoarthritis. Then, with respect to each such diagnosed disability, the physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not i(.e., there is a 50 percent or greater probability) that the disability is the result of disease or injury incurred or aggravated during service-to include injury(ies) associated with his duties as a telephone lineman during service. In rendering the requested opinion, the examiner should specifically address whether it is at least as likely as not that pre-existing chondromalacia patella was aggravated (permanently worsened beyond natural progression) during, or as a result of service, and that current disability is the result of such aggravation. Low back - The physician should clearly identify all current lumbar spine disability(ies). Then, with respect to each such diagnosed disability, the physician should render an opinion, consistent with sound medical judgment, as to whether should opine whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability (a) is the result of disease or injury incurred or aggravated during service-to include injury(ies) associated with his duties as a telephone lineman during service; or, if not (b) was caused or is aggravated (worsened beyond natural progression) by the knee disability(ies). In rendering each opinion, the physician should consider and discuss the in- and post-service medical evidence and lay assertions-to include the Veteran's assertions as to in-service injuries associated with jumps, and his and his wife's assertions that he has had continuing problems (particularly, with the knee) since service. The physician should set forth all examination findings, along with complete, clearly stated rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the matters on appeal in light of all pertinent evidence and legal authority. 8. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ JACQUELINE E. MONROE 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).