Citation Nr: 1320443 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 07-21 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a right knee disability, claimed as arthritis of the right knee. 2. Entitlement to service connection for a left knee disability, claimed as arthritis of the left knee. 3. Entitlement to service connection for a left ankle disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from June 1976 to June 1980, December 1992 to March 1993, and January 2003 to January 2004. Pertinent evidence of record is to the effect that the Veteran had a lengthy career in the reserve, and retired as a Command Sergeant Major. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. This case was previously before the Board in March 2011, at which time it was remanded for additional development. The case is now, once more, before the Board for appellate review. Finally, for reasons which will become apparent, this appeal is once again being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. REMAND A review of the record in this case raises some question as to the exact nature and etiology of the disabilities at issue. In that regard, it is contended that the Veteran's current left ankle disability is the result of injuries sustained during her initial and final periods of active military service. Further contended is that the Veteran's current bilateral knee disabilities are the result of "wear and tear" sustained over her long period of service with the reserve. A review of the file discloses that service treatment records from the Veteran's initial period of active military service, which is to say, the period from June 1976 to June 1980, are unavailable. However, at the time of a service medical examination in October 1988, i.e., between the Veteran's initial and second periods of active military service, she reported a history of painful joints, including painful ankles. Beginning in March 1994, and up to and including May 2002, there is a history of and treatment for degenerative joint disease, patellofemoral pain, and chondromalacia patellae of both knees. During the course of inservice treatment in March 1996, the Veteran gave a history of patellofemoral pain/patellofemoral syndrome of three to four years duration, arguably placing the origin of that pathology around or about 1992, i.e., during the Veteran's second period of active military service. Moreover, in April 1996, the Veteran complained of bilateral knee pain which had been present for three years, once again placing the origin of her bilateral knee disability around or about 1993, i.e., possibly during her second period of active military service. At what appears to be a February 2003 service entrance examination, the Veteran gave a history of arthritis of both knees. Moreover, in a Statement of Medical Examination and Duty Status dated in January 2004, it was noted that the Veteran had injured her left foot in September 2003, while on "active duty." Private treatment records dated from late in September 2003 show complaints of left foot pain, as well as a history of ankle pain "in the past." The pertinent diagnosis noted at the time was foot pain/plantar tendonitis. At the Veteran's final service separation examination in January 2004, she was described as "on a physical profile" for her knees. Further noted was that the Veteran was to receive a podiatric referral for foot pain. Noted at the time was a history of arthritis in both of the Veteran's knees, and that she had injured her left foot during the course of an Annual Physical Fitness Test (APFT) in September 2003. In October 2004, the Veteran was afforded a VA general medical examination. While the Veteran was diagnosed with left ankle pain secondary to strain, with residual pain on lateral movement, in conjunction with radiographic evidence of Achilles tendonitis; and chronic bilateral knee pain, with radiographic evidence of patellofemoral degenerative changes and osteophytes, no opinion was offered regarding the relationship, if any, between the Veteran's bilateral knee and left ankle disabilities and her period or periods of active military service. Such an opinion is necessary prior to a final adjudication of the Veteran's claims for service connection. See McLendon v. Nicholson, 20 Vet. App. 79 (2007). Accordingly, in light of the aforementioned, the case is once again REMANDED to the RO/AMC for the following actions: 1. The RO/AMC should contact the appropriate service department and/or record storage facility, to include the National Personnel Records Center, any appropriate facility of the United States Army Reserve, and the Defense Finance Accounting Service and request that they verify each and every period of the Veteran's service, to include a classification as to whether the service was active duty, active duty for training, and/or inactive duty for training. Should it become necessary to contact the Defense Finance Accounting Service to secure this information, that agency must review the various pay accounts to determine the account from which the Veteran was paid for each period of service. (i.e., what service periods were paid from an account designated to pay for inactive duty service; what service periods were paid from an account designated to pay for active duty for training, etc.). If the AMC/RO cannot locate these Federal records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AMC/RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to October 2007, the date of the most recent private treatment of record, must then be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the AMC/RO cannot locate the Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AMC/RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. Thereafter, the Veteran should be afforded a VA orthopedic examination in order to accurately determine the nature and etiology of her claimed knee and left ankle disabilities. The Veteran is to be notified that it is her responsibility to report for the examination, and to cooperate in the development of her claims. The Veteran is further to be advised that the consequences for failure to report for a VA examination without good cause may include denial of her claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to her last known address. It should also be indicated whether any notice sent was returned as undeliverable. Following completion of the orthopedic examination, the examiner must specifically opine as to whether any diagnosed bilateral knee and left ankle disabilities at least as likely not had their origin during, or in some way was the result of, the Veteran's period or periods of active military service, to include both active and inactive duty for training. Should it be determined that the Veteran's bilateral knee and left ankle disabilities did not have their origin during a period of active military service (to include both active duty and inactive duty for training), the examiner must opine whether any identified bilateral knee and/or left ankle disability clearly and unmistakably preexisted a period or periods of the Veteran's active military service. Should it be determined that the disabilities in question did, in fact, preexist a period or periods of the Veteran's active military service (to include both active and inactive duty for training), the examiner must opine as to whether there is clear and unmistakable evidence either that (1) the disabilities in question did not increase in severity during service, or (2) that any increase was due to the natural progress of the disease. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. The claims folder and a separate copy of this REMAND must be made available to and reviewed by the examiner prior to completion of the examination. In addition, the examiner must specify in the report that the claims file and all pertinent Virtual VA records have been reviewed. 4. The RO/AMC should then review the aforementioned examination report to ensure that it is in complete compliance with the directives of this REMAND, that the examiner has documented his consideration of all records contained in Virtual VA. If the report is deficient in any manner, the RO/AMC must implement corrective procedures. 5. The RO/AMC must then readjudicate the Veteran's claims of entitlement to service connection for right and left knee disabilities, and a left ankle disorder. Should any benefit sought on appeal remain denied, the Veteran and her representative must be provided with a Supplemental Statement of the Case which contains notice of all relevant action taken on the claims for benefits since April 2012. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in 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 particularly includes the submission of medical opinion evidence linking her claimed disorders to a period of active duty service, or to an injury incurred or aggravated during a period of active duty for training, or inactive duty training. 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). _________________________________________________ DEREK R. BROWN 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).