Citation Nr: 1324007 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 10-03 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a disorder characterized by back pain. 2. Entitlement to service connection for a disorder characterized by bilateral knee pain. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from July 2001 to July 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. For reasons which will become apparent, this appeal is 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 Veteran's claimed back and bilateral knee disabilities. In that regard, pertinent evidence of record is to the effect that, for at least a portion of the Veteran's service, he served with the 82nd Airborne Division, and received the Parachutist Badge. Reportedly, the Veteran's current bilateral knee disability is at least in part the result of multiple "jumps" in which the Veteran participated with the 82nd Airborne Division. In addition, it is contended that the Veteran's current back disability is the result of a motor vehicle accident in August 2004, at which time the Veteran, along with a number of his colleagues, were trapped under a troop carrier which had overturned. In that regard, service treatment records disclose that, in August 2004, the Veteran was, in fact, involved in the aforementioned motor vehicle accident, following which he complained of lower extremity and low back pain. Significantly, while in May/June 2005, the Veteran underwent what appears to be a service separation examination, only the "history and physical" portion of that examination is at this time a part of the Veteran's file. In that document he expressed some concern about his back and knees. The Board observes that, following a VA compensation and pension examination in January 2006, the Veteran was found to be suffering from back pain and/or a muscular condition of the thoracic spine, as well as bilateral knee pain, both of which were felt to be "at least as likely as not" related to his military service. However, no actual "diagnosis/disability" was offered for either the Veteran's reported bilateral knee or back disability. Moreover, based on a review of the record, it does not appear that, at the time of that examination, the examiner had access to the Veteran's claims folder. Finally, the Board acknowledges that, in January and March 2013, the Veteran failed to appear for VA examinations for which he had been scheduled. However, a review of the record would appear to indicate that, around or about the time of those examinations, the Veteran changed his place of residence. Under the circumstances, it is not entirely clear whether the Veteran was, in fact informed of the aforementioned VA examinations. There is no certification was to where notice letters were sent or if they were returned to the medical center. Based on the aforementioned, the Board is of the opinion that further development of the evidence would be appropriate prior to a final adjudication of the Veteran's claims. Accordingly, the case is 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, with a request that they obtain any and all remaining service treatment records from the Veteran's period of active military service, to include, in particular, a report of the physical examination conducted at the time of the Veteran's separation from service. All such records, once obtained should be made a part of the Veteran's claims folder. Should such records prove unavailable, the RO/AMC should specifically so state. 2. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to December 2012, the date of the most recent evidence of record, should 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 RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problem. 3. Appropriate steps should then be taken to verify the Veteran's current correct address. Following receipt of that information, the Veteran should be afforded an appropriate VA examination in order to more accurately determine the exact nature and etiology of his claimed back and/or bilateral knee pain. The Veteran is hereby notified that it is his responsibility to report for the examination, and to cooperate in the development of his 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 his 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 that notice scheduling the examination was sent to his last known address. It should also be indicated whether any notice sent was returned as undeliverable. Following completion of the examination, the examiner should specifically comment as to whether the Veteran currently suffers from chronic clinically-identifiable disorders of the back and/or bilateral knees, and, if so, whether such disorders/disabilities at least as likely as not had their origin during, or are in some way the result of, the Veteran's period of active military service. 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 must be made available to and reviewed by the examiner prior to completion of the examination. In addition, the examiner must specify in his report that the claims file and Virtual VA records have been reviewed. 4. The RO/AMC should then review the examination report to ensure that it is in complete compliance with the directives of this REMAND, and 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 should then readjudicate the Veteran's claims for service connection for disorders characterized by back pain and bilateral knee pain. Should the benefits sought on appeal remain denied, the veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant action taken on the claim for benefits since the issuance of the most recent SSOC in April 2013. 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 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). _________________________________________________ MICHAEL D. LYON 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).