Citation Nr: 1319537 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 09-38 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a left shoulder condition. 2. Entitlement to service connection for a right knee condition. 3. Entitlement to service connection for a back condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had confirmed active service from July 1985 to October 1985, and from December 2003 to March 2005. The Veteran has additional service with the Army National Guard of Oklahoma, Texas, and Arkansas. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran submitted a Notice of Disagreement (NOD) with this determination in April 2008, and perfected his appeal in August 2009. On the August 2009 VA Form 9, the Veteran indicated that he wished to have a Video Conference hearing. Accordingly, he was scheduled for a hearing on February 2, 2011, but failed to report for this hearing. Additionally, he provided no explanation for his failure to report to the scheduled hearing. Therefore, the Veteran's hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claims. A review of the documents in such file reveals that there are additional VA treatment records related to the Veteran's claims on appeal. These records have been reviewed and considered by the Board. 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 A review of the record discloses further development is necessary prior to the adjudication of the Veteran's claims of service connection for right knee, left shoulder, and back disabilities. The Veteran seeks service connection for disabilities as a result of his active duty service, as well as service in the National Guard. Specifically, the Veteran contends that his current right knee disability is the result of an in-service incident when he was on a scoop loader and jumped from the cab, landing on his right knee twisting it. Additionally, he stated that his current back disorder was the result of an in-service back strain from lifting while stationed in Iraq. Generally, in order to establish service connection for the claimed disorder, 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) a causal connection between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). With specific regard to National Guard and Reserve service, service connection may be granted for disability resulting from either disease or injury incurred in, or aggravated while performing, active duty for training (ACDUTRA). With respect to time periods of inactive duty training (INACDUTRA), service connection may only be granted for injury so incurred or aggravated. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 2002). The available personnel records confirm that the Veteran served in the National Guard of Oklahoma from August 1984 to March 1986, at which time he entered the National Guard of Texas. At some point later, it appears that the Veteran entered the National Guard of Arkansas. Personnel records from the National Guard for the length of the Veteran's service do not appear to be of record. While a Retirement Credits Record (NGB Form 23) notes the dates of the Veteran's various periods of ACDUTRA from July 1985 to September 1987, a subsequent Retirement Points History Statement covering the entirety of the Veteran's National Guard service through March 2005 only notes a points total. Therefore, it remains unclear to the Board when the Veteran was on periods of ACDUTRA subsequent to 1987. Therefore, in order to fully and fairly consider the Veteran's appeal, an attempt must be made to confirm all periods of active duty, ACDUTRA, and INACDUTRA. The Board does note that the Veteran was mobilized for active duty from March 2003 to March 2005 in support of Operation Iraqi Freedom. See DD Form 214, Certificate of Release or Discharge from Active Duty. During that period, specifically from February 2004 to February 2005, the Veteran served in Iraq and received imminent danger pay. In May 2006, the Adjutant General of the Arkansas National Guard issued the Veteran a Combat Action Badge (CAB), stating that it was for his period of service from March 2003 to March 2004, in which he engaged in combat with enemy forces. It is unclear to the Board on this record where the Veteran served prior to his deployment to Iraq in February 2004, such that he would be engaging in combat with the enemy. Regardless, the Veteran has confirmed service in Iraq, and the Board does not dispute his status as a combat Veteran. Given the Veteran's combat status, the Board will resolve all reasonable doubt in favor of the Veteran to find that the in-service occurrences reported by the Veteran that are consistent with the circumstances, conditions, or hardships of such service actually occurred. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). For direct service connection, the evidence as to each claimed disorder must still show a current disability and a nexus between that disability and those service events. See Gregory, 8 Vet. App. at 567; see also Kessel, 13 Vet. App. at 17-19. National Guard records show that in April 1994, the Veteran reported stiff knees with prolonged squatting. In July 1996 and December 1996 National Guard treatment records, the Veteran reported right knee pain after stomping a net into a hole. He was diagnosed with a right knee strain and contusion. Additionally, a November 2004 National Guard treatment record notes that the Veteran complained of mid back pain. The examiner documented that the Veteran had musculoskeletal pain. VA treatment records show complaints of right knee, left shoulder, and back pain. The Veteran first reported joints and knee pain in May 2005. At that time, the Veteran reported an onset of knee pain five to six weeks prior. In an October 2006 VA treatment record, the Veteran reported that he had right knee pain for several years, following an injury he sustained in Iraq. He reported that he was on his scoop loader when there was some rocket fire. He jumped from the cab, which was approximately five feet high, and landed on his right knee twisting it. He did not seek medical treatment while in Iraq because he did not have time with his busy schedule and the events that were going on. A December 2006 VA record also noted that the Veteran had a twisting injury to his right knee while serving in Iraq. MRI results showed a torn medial meniscus. Subsequently, the Veteran underwent a partial medial menisectomy of the right knee. Additionally, records show that the Veteran has right knee diagnoses of osteoarthritis and arthralgia. Further, a March 2006 VA treatment record shows that the Veteran complained of numbness and was diagnosed with thoracic outlet syndrome. X-rays of the left shoulder and neck were taken at that time, but no results were noted. A June 2006 VA treatment record notes that the Veteran injured his back in Iraq, where he was diagnosed with a back strain due to lifting. The record also noted x-rays that showed osteoarthritis changes. While the Veteran complained of back pain at that time, the x-ray results did not specify which body part the diagnosis of osteoarthritis was in reference to. May 2007 VA records show that the Veteran reported injuring his left shoulder and upper back while in-service. X-rays of the cervical spine showed positive degenerative changes at the C6-7, with narrowing of the bilateral foramen. An October 2006 VA record notes that the Veteran reported a medical history of arthritis in the back and shoulder. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2012). VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Service treatment records and the Veteran's competent and credible reports confirm an in-service right knee injury and complaints of back pain, and the Veteran has provided competent reports of continuity of symptomatology. However, VA has neither afforded the Veteran an examination nor solicited medical opinions as to the onset and/or etiology of the Veteran's left shoulder, right knee, and back conditions. Although the Veteran has been seeking treatment from the VA for these conditions, it remains unclear to the Board whether the Veteran's left shoulder, right knee, and back conditions are related to any aspect of his military service. Medical opinions regarding a diagnosis and etiology of the Veteran's current left shoulder, right knee, and back conditions are therefore necessary to make a determination in this case. See 38 U.S.C.A. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1) Ensure that the Veteran's VA treatment records are up to date in the claims file. 2) Contact the Adjutants General of Oklahoma, Texas, and Arkansas, and/or any other indicated agency, and confirm all of the Veteran's Army National Guard service dates, specifically noting all periods of active duty, ACDUTRA, and INACDUTRA from 1987 to 2005. If these records are not available, a negative reply must be provided. Additionally, if a negative reply is received, the Veteran must be notified and given the opportunity to submit those records. 3) After the foregoing, schedule the Veteran for a VA orthopedic examination to determine whether any right knee, left shoulder, or upper back disabilities are related to the Veteran's service. The claims file and a copy of this remand must be reviewed by the examiner, and the examination report should reflect that the claims file was reviewed. All indicated testing must be conducted. The examiner must address the following: A. Diagnose any current right knee, left shoulder, and back disorder(s). B. Review the VA treatment records and determine if the Veteran had arthritis of the left shoulder, back, or right knee within a year after his March 2005 separation from active duty service. A June 2006 VA treatment record notes x-rays show osteoarthritis changes, but does not specify which body part the diagnosis is in reference to. C. Render an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current right knee disorder had its onset in service or is related to any in-service disease, event, or injury. Review of the whole file is required; however, attention is invited to the National Guard treatment records in April 1994, July 1996, and December 1996, in which he reported right knee pain after prolonged squatting, and stomping on a net into a hole and was diagnosed with a medial knee muscle strain and contusion; and, the Veteran's credible history of an in-service incident in Iraq, when he was on a scoop loader when there was rocket fire, and he jumped from the cab, which was approximately five feet high, and landed on his right knee twisting it. The VA examiner should presume the in-service incident occurred when rendering an opinion. D. Render an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current left shoulder disorder had its onset in service or is related to any in-service disease, event, or injury. E. Render an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current back disorder had its onset in service or is related to any in-service disease, event, or injury, to include the Veteran's credible report of feeling a strain from lifting while stationed in Iraq. The VA examiner should presume the in-service incident occurred when rendering an opinion. The examiner must review and discuss the Veteran's service treatment records, VA treatment records, the Veteran's lay statements, and any other relevant information. Further, the examiner should also discuss the Veteran's lay statements regarding chronicity of symptomatology when rendering an opinion. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. (4) Thereafter, review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinions to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). (5) Following the completion of the foregoing, and after undertaking any other development it deems necessary, readjudicate the Veteran's claims. If a claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ Bethany L. Buck 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).