Citation Nr: 1322224 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 07-24 242 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for right knee disability. 2. Entitlement to service connection for back disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from April 1985 to January 1993. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2006 rating decision in which the RO denied service connection for a right knee disability and for a back disability. In November 2006, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in July 2007, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later in July 2007. In March 2010, the Veteran and his wife testified during a Board hearing before the undersigned Veterans Law Judge in Washington, DC; a transcript of that hearing is of record. In May 2010, the Board remanded the claims on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the AMC continued to deny each claim (as reflected in a June 2011 supplemental SOC (SSOC)) and returned these matters to the Board for further consideration. In August 2011, the Board denied the claims on appeal. The Veteran appealed the August 2011 Board decision to the United States Court of Appeals for Veterans Claims (Court). In November 2012, the Court issued a Memorandum Decision, setting aside the Board's decision, and remanding the claim to the Board for further proceedings consistent with the decision. In March and April 2013, the Veteran submitted additional medical evidence directly to the Board. In a June 2013 statement, the Veteran's representative waived initial RO consideration of the evidence. See 38 C.F.R. § 20.1304 (2012). As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. In pertinent part, a June 2013 brief prepared by the Veteran's representative of record has been associated with the Veteran Virtual VA electronic record. However, a review of the remaining documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. For the reasons expressed below, the matters on appeal are being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. REMAND In light of points raised in the November 2012 Court Memorandum Decision, and the Board's review of the claims file, further RO action on the claims on appeal is warranted. In the Memorandum Decision, the Court observed that during the March 2010 Board hearing, the Veteran made specific references to treatment received from Dr. Tucker in 2001. However, the Court found that in the instant case, the undersigned did not alert the Veteran that the medical records from Dr. Tucker were not of record or suggest that he submit such records as set forth in Bryant v. Shinseki, 23 Vet. App. 488 (2010). In Bryant, the Court held that 38 C.F.R. § 3.103(c)(2) requires the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation: (1) to fully explain the issues, and (2) to suggest the submission of evidence that may have been overlooked. As such, in the instant case, the Court determined that the Veteran's claim for service connection for a back disability was prejudiced by the undersigned's failure to suggest that he submit post-service medical records from Dr. Tucker. The Court also found that although treatment records from Dr. Carter from 2004 to 2006 were associated with the claims file, VA was on notice that records prior to 2004 existed based on a private opinion from Dr. Carter. However, VA failed in its duties to notify and assist the Veteran in obtaining these prior records. Again, the Court found that the Veteran's claims for service connection were prejudiced by the Board's failure to ensure that VA fulfilled its duty to assist. As such, the Court remanded the issues on appeal. In light of the Court Memorandum Decision, the Board finds that a remand is necessary in order to ensure that all efforts to obtain private treatment records have been exhausted and that VA has met its duty to assist in accordance with 38 C.F.R. § 3.159 (2012). As discussed further below, although the Veteran submitted additional private treatment records in March and April, these records do not appear to include any additional records from Dr. Carter, and the claims file indicates that further records may still be outstanding. The Board further observes that the Veteran was afforded a VA examination in June 2007. However, in its prior May 2010 remand, the Board found that June 2007 VA examination was inadequate and directed the RO to afford the Veteran another examination. Most recently, the Veteran was afforded another VA examination in November 2010. After reviewing the claims file and examining the Veteran, the examiner determined that it was less likely than not that any current right knee and lower back conditions were caused by or a result of right knee and low back pain treated on active duty. The examiner based this opinion in part on the fact that the Veteran did not complain of knee or back issues until long after his discharge from service. However, the additional private treatment records identified in the Court decision may show prior complaints. Moreover, the examiner expressed that he did not feel that the conditions were related to the Veterans' service-connected complaints, but then stated that it was possible that they were. These apparently contradictory statements diminish the probative value of the opinion obtained on examination. Once VA undertakes the effort to provide an examination to obtain an opinion when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr, 21 Vet. App. at 311; see also Nieves-Rodriguez, 22 Vet. App. at 304. Accordingly, given that additional private treatment records may show prior complaints of low back and right knee pain, possibly affecting the most recent examiner's opinion, and the contradictory comments concerning etiology, the Board finds that another examination and medical opinion is needed to resolve the claims for service connection. See 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Hence, the RO should arrange for the Veteran to undergo further VA orthopedic examination, by an appropriate physician (preferably, one who has not previously examined him), at a VA medical facility. The Veteran is hereby advised that failure to report for the scheduled examination, without good cause, may well result in denial of the claims (as the original claims for service connection will be considered on the basis of the evidence of record). See 38 C.F.R. § 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. If the Veteran fails to report for the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should obtain and associate with the claims file all pertinent outstanding records. The Board notes that, during the March 2010 hearing, the Veteran testified that he visited the emergency room at Fort Lewis (presumably, at Madigan Army Medical Center) for right knee pain during service and that these records were not included among his service treatment records. In the May 2010 remand, the Board directed the RO to obtain such records. The RO directly contacted Madigan Army Medical Center in August 2010, and received a negative response. The RO also contacted the National Personnel Records Center (NPRC) in October 2010; however, the claims file does not appear to include a response from the NPRC. Hence, the RO should again contact the NPRC-and any other appropriate source(s)-to request such records, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. As regards post-service medical records, the Board notes that, although the Veteran submitted treatment records from Dr. Tucker dated from May 1996 to May 2002, no additional records have been submitted for Dr. Carter as discussed in the Court Decision. Moreover, there appears that some records may also be missing from other private providers. Specifically, the Veteran submitted records dated in September 2005 to October 2006 from Dr. Cohn and Dr. Fuller, but there was some indication at the Board hearing that additional records may be available. Further, another treatment record recently submitted by th Veteran dated August 2003 indicated that the Veteran had gone to the emergency room for low back pain since his last visit, and it does not appear that these records have been obtained. Essentially the claims file includes the following private treatment records: Dr. Carter, dated from February 2004 to February 2006; Dr. Cohn, dated from September 2005 to November 2006; Dr. Fuller, dated September 2005; Chesapeake General Hospital, dated October 2005; Dr. Tucker, dated from May 1996 to May 2002; and Bayview Medical Center, dated from February 2002 to December 2012. Accordingly, the RO should contact the Veteran and notify him of the records currently of record and request authorization for any additional private treatment record, to specifically include records prior to February 2004 from Dr. Carter, additional records from Drs. Cohn and Fuller, and emergency room records dated approximately in 2003, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012) as regards requests for private treatment records. Therefore, while this matter is on remand, the RO should also give the appellant another opportunity to provide any further information and/or evidence pertinent to the claims for service connection, on the merits. The RO's letter to the appellant should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the appellant provide, or provide appropriate authorization for it to obtain, any outstanding , pertinent, private medical records-to particularly include from the sources identified above.. Thereafter, the RO should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims for service connection on appeal. The RO's adjudication of these claims should include consideration of all pertinent evidence added to the record since the RO's last adjudication-to include, for the sake of efficiency, evidence submitted directly to the Board (notwithstanding the waiver of initial RO consideration of this evidence). Accordingly, these matters are hereby REMANDED for the following action: 1. Contact the NPRC and any other appropriate source(s)to obtain emergency room records from Madigan Army Medical Center (as was previously done on October 2010). Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims for service connection for right knee and back disabilities. Identify all current private treatment records currently of record and specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private medical record-to specifically include records from Dr. Carter dated prior to February 2004, additional records from Drs. Cohn and Fuller, and emergency room records approximately dated in 2003 . Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, obtain all identified records by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all available records and/or responses from each contacted entity are associated with the claims file, arrange for the Veteran to undergo a VA orthopedic examination, by an appropriate physician (preferably, one who has not previously examined the Veteran), at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented history and assertions. All indicated tests and studies (to include x-rays, if necessary) should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify all current disability(ies) of the right knee and back. Then, with respect to each such diagnosed disability, the examiner should render an opinion- consistent with sound medical judgment and based on consideration of the Veteran's in-service and post-service medical history and assertions-as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in, or is otherwise medically-related to, the Veteran's military service, to include injury/complaints therein. In rendering an opinion as regards the Veteran's back, the examiner should consider the Veteran's documented complaints of low back pain during service, assertions of low back pain since service, post-service MRI findings of "disc bulge" and foraminal narrowing, and the September 2006 private opinion by Dr. Carter. As regards the right knee, the examiner should consider the Veteran's in-service diagnosis of patellofemoral syndrome, assertions of right knee pain since service, intercurrent work-related injury in September 2005; September 2005 MRI and October 2005 arthroscopic surgery findings; the report of a January 2006 evaluation indicating that arthritis of the right knee was not related to the work injury; a November 2006 opinion by Dr. Cohn that the Veteran's disability was possibly service connected; and an October 2006 opinion by Dr. Fuller that it is "highly probable" that the Veteran continues to have patellofemoral syndrome. The physician should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims for service connection in light of all pertinent evidence (to include all that associated with the claims file since the RO's last adjudication) and legal authority. 8. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes citation to and discussion of all additional legal authority considered, as well ad clear reasons and bases for all determinations, and afford them an appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).