Citation Nr: 1320515 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-46 675A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for arthritis of the right hip to include as secondary to service-connected internal derangement of the left knee. 2. Entitlement to service connection for a sciatic nerve condition to include as secondary to service-connected internal derangement of the left knee. 3. Entitlement to service connection for diabetes mellitus, Type II, to include as secondary to service-connected internal derangement of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from June 1969 to July 1970. He also attended the United States Naval Academy. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 Prior to adjudicating the claims of entitlement to service connection on both a direct and secondary basis for arthritis of the right hip, a sciatic nerve condition, and diabetes mellitus, additional development is necessary. See 38 C.F.R. § 19.9 (2012). The record indicates that in 1968 the Veteran injured his left knee playing football while attending the Naval Academy. He was subsequently released from the military in 1970 after a medical board found him not medically qualified for commissioning in the United States Navy due to post traumatic arthritis of the left knee. The Veteran now contends that his right hip arthritis, a sciatic nerve condition, and his diabetes mellitus are all caused by or aggravated by his service-connected left knee. In an April 2008 statement the Veteran reported that multiple treating physicians had informed him that his right hip arthritis and the pain associated with it are the result of favoring his left knee and thereby placing too much strain on his right leg. This strain placed on his right leg caused the arthritis to inflame, and as "[it] would inflame it would pinch the sciatic nerve sending severe pain down [his] right leg across [his] thigh down towards his knee." The Veteran provided private treatment records from a Dr. C., which indicated that he began complaining of right hip pain in January 1977, seven years after his separation from active duty. The records from Dr. C. further indicated that the Veteran continued to complain of periodic right hip pain from 1977 to 1999. April 2009 VA treatment records included a medical history of degenerative joint disease of the right posterior hip. The April 2009 VA treatment report also noted that the Veteran's right hip pain was radiating pain into his back. An August 2007 VA treatment record diagnosed the Veteran with sciatica. With regard to the claim for service connection for diabetes mellitus, Type II, the Veteran alleged in April 2008 that the pain caused by his service-connected left knee made it impossible for him to exercise which made it difficult for him to keep his weight down. The Veteran further alleged that his obesity was a major factor in being diagnosed with diabetes mellitus. The April 2008 letter from the Veteran was accompanied by three VA Form 21-4142 Authorization and Consent to Release Information forms for doctors providing treatment for the Veteran's right hip and sciatic nerve pain. The record does not indicate that an attempt was made to retrieve the private treatment records. VA has a duty to help the Veteran obtain these records if they are available. 38 C.F.R. § 3.159(e) (2012). VA must provide a medical examination when the record lacks evidence to decide the Veteran's claims and there is evidence of (1) a current disability or persistent or recurrent symptoms of disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4)(i) (2012); see also McLendon v. Nicholson, 20 Vet.App. 79 (2006). Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claims. See 38 C.F.R. § 3.159(c)(4)(i) (2012). Under the circumstances presented in this case, the Board finds that the Veteran has met the guidance set forth in McLendon. In consideration of the Veteran's lay statements with regard to his continuous pain and inability to exercise, evidence of current disabilities and with recognition of the "low threshold" as in McLendon, the Board finds that a remand for a VA examination to determine if the Veteran has right hip arthritis, a sciatic nerve condition, and/or diabetes mellitus, Type II, that is related to his active duty service is warranted. Additionally, an attempt should be made to obtain and pertinent records identified by the Veteran. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain any outstanding VA treatment records that may exist. In particular, obtain any available treatment records from Hines, Illinois, VAMC. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e) (2012). 2. Attempt to obtain any outstanding private treatment records that may exist. In particular, request records from Dr. P.B., the Parker Naprapathic Clinic, and Chirocare Wellness Center. VA Forms 21-4142 have already been supplied, but new ones should be requested if necessary. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e) (2012). 3. After obtaining the above noted records, the RO/AMC must schedule the Veteran for a VA orthopedic examination by a physician with appropriate expertise. The purpose of the examination is to determine the etiology of the Veteran's diagnosed right hip arthritis and any sciatic nerve disorder, in particular, whether the Veteran's post-service diagnosis of right hip degenerative joint disease and/or his sciatic nerve condition are due in whole or in part to active service or alternatively caused by or aggravated by his service-connected left knee disorder. The following considerations must govern the examination: a. The claims file and a copy of this remand must be made available to the physician, who must acknowledge receipt and review of these materials in any report generated. b. The physician must review all medical evidence associated with the claims file. In particular, the Board draws the physician's attention to the post-service records dating from 1978 to 1999 which indicated that the Veteran had complained of right hip and thigh pain for many years beginning only 7 years after separation c. All indicated tests and studies must be performed. d. The examiner must take a complete history from the Veteran as to as to how long his right hip and low back pain has continued. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete rationale in support of such a finding. e. The examiner must provide an opinion as to whether the Veteran's right hip disorder and/or sciatic nerve disorder are due in whole or in part to his active service. f. The examiner must also provide an opinion as to whether the Veteran's right hip disorder and/or sciatic nerve disorder was caused by or aggravated by the Veteran's service-connected left knee disorder. g. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established principles. h. If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 4. The RO/AMC must also schedule the Veteran for a VA examination by a physician with appropriate expertise. The purpose of the examination is to determine the etiology of the Veteran's diagnosed diabetes, in particular, whether the Veteran's post-service diagnosis of diabetes mellitus is due in whole or in part to active service or alternatively caused by or aggravated by his service-connected left knee disorder. The following considerations must govern the examination: a. The claims file and a copy of this remand must be made available to the physician, who must acknowledge receipt and review of these materials in any report generated. b. The physician must review all medical evidence associated with the claims file. In particular, the Board draws the physician's attention to the Veteran's contentions that his left knee pain prevented him from exercising making it impossible for him to control his weight which led to his diabetes mellitus diagnosis. c. All indicated tests and studies must be performed. d. The examiner must take a complete history from the Veteran as to how his inability to exercise was a factor in his being diagnosed with diabetes mellitus. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete rationale in support of such a finding. e. The examiner must provide an opinion as to the whether the Veteran's diabetes mellitus is due in whole or in part to his active service; and/or obesity which the Veteran alleges was caused by the Veteran's inability to exercise; or other factors including but not limited to nutrition factors, alcohol use, genetic disposition . f. The examiner must also provide an opinion as to whether the Veteran's diabetes mellitus was caused by or aggravated by the Veteran's service-connected left knee disorder. g. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established principles. h. If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 5. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 6. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity 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 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).