Citation Nr: 1320922 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 12-23 051 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a bilateral hip disability. 2. Entitlement to service connection for a bilateral ankle disability. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1946 to June 1949 and from September 1949 to May 1953, and from July 1953 to April 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claims. A review of the documents in such file reveals that they include a transcript of Board hearing testimony and VA treatment records pertinent to the current appeal. 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). In February 2010, the Veteran submitted a service treatment record regarding treatment of a pilonidal cyst in service in May 1954, and at his May 2013 Board hearing he stated that this occurred following an injury during a parachute jump and that he continues to have pain from that cyst today. To the extent that the Veteran has raised the issue of entitlement to service connection for a pilonidal cyst, this issue has not yet been addressed by the agency of original jurisdiction, and the Board does not have jurisdiction over it. Therefore, the issue is referred to the agency of original jurisdiction for appropriate action. 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 is claiming entitlement to service connection for bilateral hip, knee, and ankle disabilities caused by injury and joint stress from parachute jumps and other physical activity in service. The Veteran's DD Forms 214 show that he served in combat in Korea, and that during his service he attended basic airborne school, airborne jumpmaster school, and airborne aerial delivery training. The Veteran's service treatment records are silent for any complaints or treatment relating to pain or injury in the lower extremities or hips. At a May 2013 hearing the Veteran testified that during service he worked as a jumpmaster with the 82nd Airborne Division and had over 60 documented jumps throughout his service. The Veteran explained that some of these jumps were quite hard physically, that they occurred over rough terrain, and that he had to carry heavy loads over long distances, which was hard on his joints. The Veteran stated that as he has gotten older, he has lost muscle and feels increased pain from the trauma caused by these jumps. The Veteran's VA treatment records show that he has been diagnosed with osteoarthritis and bilateral knee arthralgia, and he has complained of recurring pain in his hips, legs, and feet. In 2003, the Veteran was fitted for bilateral knee braces. The records also show that he has reported increasing lower extremity edema a history of previous myopathies in his legs. In April 2011, he underwent stent surgery to treat lower extremity varicose veins and peripheral vascular disease. A private treatment record submitted by the Veteran shows that he had a right knee unicondylar replacement in October 1999. In order to determine whether the Veteran's claimed bilateral knee, hip, and ankle disabilities are related to service, the RO scheduled the Veteran for a VA orthopedic examination to take place in August 2012 at the Houston VA Medical Center. In July 2012, the Veteran called the Houston VA Medical Center to state that due to his age and health he was unable to travel to Houston, but requested that he be rescheduled for an examination closer to his home in Conroe, Texas. The Veteran stated at his May 2013 Board hearing that he had believed that he was going to be scheduled for a VA examination closer to his home and did not know why it had not occurred. He testified that he was willing to report for a VA examination. The Veteran served in combat and he is competent to state that he injured his hips, knees and ankles in-service. As the record currently lacks any evidence pertaining to a possible nexus between the Veteran's disabilities of the lower extremities and his service, and as there appears to have been a misunderstanding between the appellant and the RO regarding his previously scheduled VA examination, the case is being remanded in order to afford the Veteran another opportunity to attend a VA examination, preferably to be scheduled at the Conroe VA Outpatient Clinic, if possible. Additionally, the record indicates that the Veteran receives regular medical care at the Conroe VA Outpatient Clinic, an affiliated facility of the VA Medical Center in Houston, Texas. The record currently includes VA treatment records dating up to April 2012. Records generated by VA facilities that may have an impact on the adjudication of a claim are constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The RO/AMC should therefore obtain from the Houston VA Medical Center and affiliated facilities any outstanding records of evaluation or treatment of the Veteran since April 2012. 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 RO/AMC should obtain from the VA Medical Center in Houston, Texas and all affiliated facilities all records and test results relating to treatment of the lower extremities since April 2012. If the RO/AMC cannot locate any 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 RO/AMC 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. Thereafter, the RO/AMC should schedule the Veteran for a VA examination by an orthopedist to determine the nature and etiology of any current bilateral hip, knee, or ankle disabilities, preferably at the Conroe VA Outpatient Clinic, if possible. All indicated tests must be accomplished. The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination. The examiner must specify in the report that the claims file and Virtual VA records have been reviewed. Following the examination, the physician must opine whether it is at least as likely as not, i.e., there is at least a 50/50 chance, that any bilateral hip, knee and/or ankle disability had their onset during or were otherwise caused by the Veteran's service. The orthopedist is to provide a full rationale for his or her opinion, including addressing evidence in the claims file and the Veteran's lay statements regarding his airborne service. If the orthopedist cannot offer an opinion without resorting to speculation, he or she must so state, and explain why speculation is required to reach the opinion offered. 3. The Veteran is to be notified that regardless of the location of the scheduled examination, it is his responsibility to report for any examination and to cooperate in the development of the claims. The consequences for failure to report for any VA examination without good cause may include denial of the claims, as the original claims will be considered on the basis of evidence of record. 38 C.F.R. §§ 3.158, 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. 4. The RO/AMC must ensure that all medical examination reports and opinion reports comply with this remand and the questions presented in the request. The RO/AMC must ensure that all examiners documented their consideration of all records contained in Virtual VA. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 5. Thereafter, the RO/AMC should readjudicate the claims. If any benefit sought is not granted, the appellant and his representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This particularly includes any medical opinion evidence linking any current hip, knee, or ankle disabilities to service. 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).