Citation Nr: 1322446 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 10-23 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased evaluation for status post, repair of talo-fibular ligament of the right ankle, currently evaluated as noncompensable. 2. Entitlement to service connection for a low back disorder to include as secondary to service-connected disability. 3. Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from November 1966 to December 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In April 2011, the Veteran appeared before the undersigned Veteran's Law Judge and gave testimony in support of his claim. A complete transcript is of record. 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 Reason for remand: to obtain VA and private medical records and to have the Veteran examined for disability evaluation and for nexus opinions. The Veteran is seeking a compensable evaluation for his service-connected right ankle disability. He was last examined by VA in April 2009. During his hearing before the undersigned in April 2011, he stated that his disability had worsened since he was last evaluated and he requested to be re-examined to determine the current severity of his disorder. The United States Court of Appeals for Veterans Claims (Court) has held that a Veteran is entitled to a new VA examination where there is evidence, including his statements, that the disability has worsened since the last VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Court has also held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In light of the Veteran's contentions, the claim must be remanded in order to afford the Veteran a VA examination to determine the current severity of his disability. The Veteran is seeking service connection for a low back disability and for a bilateral knee disorder. He has indicated that he is currently being treated by VA. A review of the file and Virtual VA reveals that no VA treatment records have been requested and associated with the claims file by the RO. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, because the Veteran has identified possible outstanding VA records pertinent to his claims on appeal, VA must undertake efforts to acquire such documents as these records may be relevant to his claims; a reasonable effort should be made to obtain such records. See 38 U.S.C.A. § 5103A(b). Additionally, the Veteran has stated that he has received private treatment from Dr. Colagrosso in Denver for the past 25 years. He has also indicated that he was treated by Dr. Worts in Louisville in 2001 and 2002 regarding his knees. The RO has not attempted to obtain records from these clinicians. When VA is put on notice of the existence of private medical records, VA must attempt to obtain those records before proceeding with the appeal. See 38 C.F.R. § 3.159(c)(1); See Lind v. Principi, 3 Vet. App. 493, 494 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The Veteran has stated that when he injured his ankle in service, he also injured his back and his knees. The record shows that he did receive treatment in service for his right ankle with no indication of back or knee problems. However he is competent to attest to having an injury in service and continuing complaints thereafter. He has testified that he has been diagnosed with osteoarthritis of the low back and of the knees. Additionally during his testimony before the Board, the Veteran stated that he was straining his back because he favored his right ankle. This suggests that he may be claiming secondary service connection for his low back disorder. This new theory of entitlement does not constitute a new claim; thus the Board has characterized this issue to correctly reflect these alternative theories of entitlement. See Ashford v. Brown, 10 Vet. App. 120, 123 (1997) (a new theory of etiology regarding the same underlying disorder does not result in a "new" claim for adjudication purposes). Thus the issue has been recharacterized as noted on the first page of this decision. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must issue to the Veteran corrective VCAA notice, specifically as to the matter of service connection based on a secondary theory of entitlement. The notice letter should fully comply with, and satisfy, the provisions of 38 C.F.R. § 3.310, as regards disabilities that are proximately due to, or aggravated by, service-connected disease or injury. 2. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Of particular interest are records from Dr. Colagrosso and Dr. Worts. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. Obtain complete records of the Veteran's treatment by VA. If these records are unavailable, simply do not exist, or further attempts to obtain them would be futile, document this in the claims file. See 38 U.S.C.A. § 5103A(b). 4. Then, schedule the Veteran for a VA orthopedic examination to determine the current severity of his service-connected right ankle disability. The examiner should also examine the Veteran's low back and bilateral knees in an effort to determine the current diagnoses and to provide an opinion regarding the etiology of any disorders found. The claims file and any pertinent evidence in Virtual VA must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be made available to the examiner for review. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings should be reported in detail. Any tests and studies deemed helpful by the examiner should be conducted. As to the right ankle disability, the examiner should report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria. In particular, the examiner should indicate whether the Veteran has any limitation of motion of the right ankle, ankylosis, or malunion. As to the low back and knees, determine the current nature of any disorders found. Then offer an opinion with complete rationale as to whether it is at least as likely as not (a 50 percent probability or greater) that any currently found low back disorder or bilateral knee disorder is related to the Veteran's service or if his low back disorder is due to or aggravated by his service -connected right ankle disorder. The examiner must address the Veteran's contentions regarding the claim of continuing symptoms since service. In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. The examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 7. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claims must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).