Citation Nr: 1315099 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 09-23 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from February 1956 to January 1958. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing at the RO before a Decision Review Officer (DRO) in March 2011. The Veteran testified at a Travel Board hearing at the RO before the undersigned Veterans Law Judge of the Board in July 2012. Transcripts of these hearings have been associated with the claims file. The Board previously remanded this claim in September 2012 for additional development. In March 2013, the Board denied entitlement to an increased rating for bilateral hearing loss. This issue is no longer in appellate status before the Board and need not be addressed further. A review of the Virtual VA paperless claims processing system reflects that additional records have been added to the present appeal. These records include VA outpatient treatment reports from June 2008 to April 2012. A supplemental statement of the case (SSOC) was issued in February 2013, which addressed this additional evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 The Veteran's service treatment records are not available. After a complete search, the National Personnel Records Center (NPRC) reported in May and September 2007 that the record may be "fire-related;" there were no service treatment records or Surgeon General Officer's reports on file; and all or part of the service treatment records could not be reconstructed. In situations where the service records are incomplete, lost or presumed destroyed through no fault of the veteran, VA has a heightened duty to assist in the development of the case, as well as a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt doctrine. See Marciniak v. Brown, 10 Vet. App. 198, 200 (1997), citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). VA's heightened obligation to consider the benefit of the doubt doctrine in this case necessarily includes an equally heightened obligation to consider the Veteran's essential account of his alleged in-service injury. This matter was previously remanded to develop medical evidence which would ascertain if there is clinical evidence, essentially cooborating presently what the Veteran alleged occurred while he was in service from 1956 to 1958. This medical evidence was not adequately developed, and the matter must again be remanded. The Veteran alleges that he injured his knees during an active service training exercise, when he was struck by a moving tank gun turret. See March 2011 DRO hearing transcript and July 2012 Travel Board hearing transcript. He reported that he then had hairline fractures in the knees and was treated during service. See id. Lay statements have also been provided by the Veteran's brother in September 2007, a family friend in October 2007 and a fellow service member in August 2009, in which they reported remembering that the Veteran had injured his knees while on active service, that he currently had problems with both knees and that he had knee problems in the past. The medical evidence of record reflects that the Veteran was initially treated for and diagnosed with a bilateral knee disability in December 2008, when he was diagnosed with end stage osteoarthritis of the bilateral knees by a private physician. Private treatment records from December 2008 to August 2009 reflect that the Veteran was diagnosed with end stage osteoarthritis of the bilateral knees, osteoarthropathy of the right knee, right knee osteoarthritis, and status post right knee arthroplasty with intact prosthesis in adequate anatomic alignment. These records also reflect he underwent a right total knee arthroplasty in January 2009. At a January 2013 VA examination, the Veteran was diagnosed with degenerative joint disease of the bilateral knees. The examiner opined that the claimed condition was not likely to have been incurred in or caused by the claimed in-service injury, event or illness. He explained that there was no service treatment record evidence of knee problems, and noted that there was no medical evidence that the Veteran sought medical attention after service for over 30 years. In the March 2013 remand, the Board found this VA examination was not sufficient. The Board observed that the examination did not consider the Veteran's account of his in-service injury or the lay statements of other individuals attesting to that injury. Therefore the claim was remanded for a supplemental opinion. In an April 2013 VA addendum report, the examiner who last provided the January 2013 VA examination furnished an addendum. He stated that he reviewed the claims file and noted that there was no indication in the records of an injury while the Veteran was on active duty. The examiner then found that the Veteran indicated in his claim that he was injured while on a "combat mission." The examiner observed that the Veteran did not receive a Combat Infantryman Badge, which, in the examiner's view meant it was unlikely that the Veteran saw combat. The examiner noted there was no medical documentation from 1958 until 2008, when the Veteran sought medical attention for his knees, which was 50 years after discharge from active service. He also found that there was no medical evidence that the Veteran developed chronic knee problems after service. The examiner found no evidence that indicated that the Veteran's active service led to his knee problems. The April 2013 VA addendum is not sufficient to address the circumstances of the case as the VA addendum report once again did not acknowledge that the examiner had considered the Veteran's own account of an in-service injury or the lay statements of other individuals attesting to the injury, as instructed in the March 2013 Board remand. The examiner's observation that the Veteran is not the recipient of the Combat Infantryman Badge is of no probative value as the Veteran has not alleged that he is a combat veteran, nor does the record suggest that he is a combat veteran. Moreover, the Veteran need not have experienced combat in order to receive service-connected compensation. The case must therefore be remanded for additional development to include a supplemental medical opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 U.S.C.A. § 5103A (West 2002). Because the appeal remains open and the duty to assist is also heightened, the Board will afford the Veteran an additional opportunity to provide substantiating evidence as outlined below. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The AMC/RO should obtain and associate with the claims file any pertinent medical records adequately identified by the Veteran, to include all private treatment records adequately identified by the Veteran. The AMC/RO should request the Veteran to complete an Authorization and Consent to Release Information to the VA Form 21-4142 for each private physician identified to include, Robert Burke, M.D. All records WHICH ARE NOT DUPLICATES of those already in the claims file should be associated with the claims file. THE AMC/RO SHOULD DOCUMENT WHETHER OR NOT THESE DOCUMENTS WERE AVAILABLE. 2. AFTER THE ABOVE HAS BEEN COMPLETED, the AMC/RO should schedule the Veteran for an examination by a VA ORTHOPEDIC SPECIALIST to determine the current nature and etiology of his bilateral knee disorder. The claims folder and A COPY OF THIS REMAND are to be made available to and reviewed by the examiner in connection with the examination. The examination report is to contain a notation that the examiner reviewed the claims file. The purpose of the examination is to determine whether the Veteran's bilateral knee disorder had its onset during active service or is otherwise related to any incident of service, including the alleged in-service injury. With respect to the review of the claims file, the Board calls the examiner's attention to the following: (a). The service treatment records are not available, as they may be fire-related. (b). The current private medical evidence-and any other relative post service evidence associated with the claims file-demonstrating that the Veteran was first diagnosed with a bilateral knee disorder in December 2008, approximately 50 years after his separation from active service. (c). The Veteran's lay testimony in the July 2012 Travel Board hearing regarding his in-service injury. See Travel Board hearing transcript, pgs. 2-4. (d). The September 2007 lay statement by the Veteran's brother, the October 2007 lay statement by the Veteran's family friend and the August 2009 lay statement by a fellow service member, all attesting to the Veteran's in-service bilateral knee injury. The examiner is asked to obtain a history of the Veteran's bilateral knee disorder, provide clinical studies, and offer an opinion addressing the following questions: (a). Please specify the diagnosis (or diagnoses) of the Veteran's bilateral knee disorder. (b). Based on the clinical studies performed, including any radiology reports, is there any clinical support for the Veteran's in-service bilateral knee injury allegation? (for example but not exclusively - does the clinical evidence of record, including any studies conducted in this examination, support the Veteran's allegation of having sustained a bilateral or unilateral knee injury between January 1956 and January 1958; or are there one or more alternative etiologies; and/or are any noted degenerative changes consistent with age related changes). (c). The examiner is asked to furnish an opinion as to whether the currently diagnosed bilateral knee disorder was caused by or a result of the in-service injury or is otherwise related to the Veteran's active service? PLEASE PROVIDE A FULL EXPLANATION OF THE REASONS FOR EACH OPINION FURNISHED AND ACCOUNT FOR THE LAY STATEMENTS NOTED IN THESE REMAND INSTRUCTIONS. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. Indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 3. Following completion of the foregoing, review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, determine whether the examiner has responded to the question posed. If not, the claims file must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 4. Readjudicate the claim on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished an SSOC and given the opportunity to respond thereto. The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. 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). _________________________________________________ Vito A. Clementi 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).