Citation Nr: 1319946 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 03-27 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a dermatological disorder. 3. Entitlement to service connection for a respiratory disorder, claimed as asthma due to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Daughter ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from October 1971 to October 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2002 rating decision by the Montgomery, Alabama, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to the benefits sought. The Veteran and his daughter testified at an August 2009 hearing held at the RO before the undersigned; a transcript of the hearing is associated with the claims file. In October 2009, the Board remanded the claims for additional development. The directed tasks having been undertaken, the appeal has been returned to the Board. The appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Remand is required to secure compliance with VA's duties to notify and assist the Veteran in substantiating his claims. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. With regard to notice, the Board in October 2009 noted that the Veteran had been service-connected for bilateral pes planus for several decades, and found that there was sufficient evidence in the file to warrant inquiry into whether the currently claimed left knee disability was caused or aggravated by the pes planus on a secondary basis. Upon receipt of a claim, VA must inform the Veteran of the elements of his claim, the evidence and information necessary to substantiate that claim, and the respective responsibilities in obtaining such. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). A review of the claims file reveals that previous letters did not specifically address the theory of secondary service connection, though it is mentioned. In light of the need to remand the claims for other reasons, VA should avail itself of the opportunity to provide explicit notice. Turning to the duty to assist, the Board notes that although the possibility of secondary service connection was raised by the record and in the October 2009 remand, the February 2012 examiner did not address this theory of entitlement. On remand, a supplemental opinion should be obtained, particularly in light of the stated differences in severity of arthritis between the left and right knees. Additional information and supplementation of the opinion with regard to a skin disorder is also necessary. Service treatment records reveal a diagnosis of neurodermatitis, manifested as lesions of the legs. The same condition was diagnosed at a May 2007 VA examination, though the examiner noted it was currently asymptomatic. At the February 2012 examination, the examiner explained that neurodermatitis consists of self-inflicted lesions, due to excessive scratching. No doctor has, however, provided any explanation for why the Veteran resorted to such scratching. Is there an underlying skin disease or other condition, subject to periodic flares, that could cause such behavior? It appears that the current medical evidence addresses only the outward manifestation, without discussing a possible underlying cause. Further, VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. Efforts to obtain such must continue until the records are obtained, or it can be certified that further efforts would be fruitless. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Further, VA records are considered to be constructively of record and VA is charged with knowledge of their contents. Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The Board directed that the RO review the claims file, particularly the Veteran's August 2009 testimony, and determine which VA facilities had treated the Veteran in the past, and take appropriate steps to obtain outstanding records. The RO did so, and in January 2012 sent a request to the VA medical center (VAMC) in Mobile, Alabama, requesting records for the period of October 1975 to July 2009. A response was received shortly thereafter containing printouts of computerized VA records from November 1999 to July 2009. A supplemental request associated records from July 2009 to January 2012 with the Veteran's electronically maintained Virtual VA file. However, it is clear upon review of the remainder of the file that the requests did not procure complete records. Isolated periods of treatment in the 1980's and early 1990's are reflected in the paper claims file, and these are not reflected in the records produced in response to the request. Importantly, the older records were not computerized; they are copies of handwritten progress notes and individually printed tests results. It appears, therefore, that in responding to the RO, the VAMC merely printed all available computerized records. The Board cannot determine from the response that archived or other retired paper records were searched, and hence cannot say that avenues of inquiry for the potentially relevant older records have been exhausted. Further remand is required to either obtain all older records from 1975 forward, or to clearly certify that such are not available. Efforts must also include notice to the Veteran of all efforts, and the results thereof. Accordingly, the case is REMANDED for the following action: 1. Contact the appellant and provide him fully compliant notice as required under applicable laws, regulations, and legal precedents. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must include information regarding secondary service connection of the left knee, due to pes planus or other service-connected disabilities. 2. Associate with the claims file complete VA treatment records from the medical center in Mobile, Alabama, and New Orleans, Louisiana, and all associated clinics, as well as any other VA facility identified by Veteran or in the record, for the period of October 1975 to November 1999. All efforts must be documented in the record, and must include specific requests to search and/or recall any archived or otherwise stored records. If these records cannot be obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2012). 3. After completion of remand directives 1 and 2, above, return the claims file to the February 2012 VA examiner. The examiner must offer an opinion as to whether it is at least as likely as not any current left knee disability was caused or aggravated by service-connected bilateral pes planus. The examiner must discuss and explain, if possible, the difference in severity between the left and right knee conditions, in light of his finding that those conditions were due to age and normal "wear and tear." If the February 2012 examiner is not available, the request may be submitted to another, equally qualified physician. A new physical examination is not required unless requested by the physician. A discussion of the complete rationale for all opinions expressed should be included in the physician's addendum report, to include reference to pertinent evidence where appropriate. If the physician is unable to offer any of the requested opinions, it is essential that he offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. After completion of remand directives 1 and 2, above, schedule the Veteran for a VA skin disease examination; the claims folder must be reviewed in its entirety in connection with the examination. The examiner must identify all current skin conditions, to include discussion of those which may be present but are currently dormant. The examiner must specifically address the underlying cause of the Veteran's neurodermatitis, and must opine as to whether it is at least as likely as not that any condition causing the in-service scratching remains currently present. A discussion of the complete rationale for all opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate. If the physician is unable to offer any of the requested opinions, it is essential that he offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 5. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then 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). 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). _________________________________________________ J. K. BARONE 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).