Citation Nr: 1324352 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 09-44 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for hypogonadism (claimed as due to polychlorinated biphenyl (PCB) exposure). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1973 to September 1977 and from October 1981 to October 1988. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). In May 2012, the case was remanded for additional development. The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND While the notice provisions of the VCAA appear to be satisfied, a review of the record found that further development is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to the claims of service connection. See 38 C.F.R. § 3.159. The Board observes that a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, when VA determines an examination or opinion is warranted it must provide one that is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Right and left knee disabilities The Veteran claims that he has right and left knee disabilities due to running/training and two motor vehicle accidents (MVAs) in service. In May 2012, the Board remanded these claims for a VA examination (since the private and VA medical opinions of record were deemed inadequate). The examiner was to accept as credible (which he did not do) the Veteran's accounts that following the MVA's in service he had knee complaints which were not treated. In an undated addendum (to a June 2012 examination report), the examiner provided a nexus opinion indicating there was a lack of evidence in the STRs. The examiner was also to comment on a June 2008 letter from the Veteran's orthopedic surgeon Dr. Audell, and did not do so. Furthermore, there are still outstanding records of treatment that the Veteran received for his knees which still must be secured. Following the May 2012 remand, the Veteran did not respond to the requesting the information sought. In an October 2012 statement, he instead provided an authorization for records from a Dr. Muller. As noted by the remand, the complete treatment records from Dr. Muller are not associated with the claims file; some records (including of an initial visit in 2004) have been secured, but records of subsequent treatment including pertaining to knee surgeries in 2008 and 2009 are not associated with the record. Complete records of Huggins Hospital treatment related to the Veteran's 2004 medial meniscal tear, Navaho Apache Medical Center records (2007 treatment is identified), and complete records from Dr. Audell (an initial visit in January 2008 is noted) remain outstanding. Finally, records pertaining to the Veteran's claim with American Airlines (for disability benefits due to a knee injury) are also pertinent evidence that remains outstanding. In short, the evidentiary picture regarding the Veteran's knee disabilities is incomplete. These claims cannot be properly adjudicated without the records described. Hypogonadism The Veteran alleges that his hypogonadism resulted from his exposure to PCBs in service while serving as a radar technician. Following the May 2012 remand, he was afforded a VA examination (in June 2012). In an undated addendum opinion, the examiner (following review of the claims file) provided a negative nexus opinion citing to a lack of evidence in the STRs. In another undated addendum opinion, the examiner acknowledged there is internet evidence that hypogonadism may be related to PCBs exposure, but reiterated that there is no medical evidence that the Veteran's hypogonadism is related to service. No further explanation was provided. The May 2012 remand also directed the examiner that if the nexus opinion was negative, the examiner also should identify the etiology for hypogonadism considered more likely; the examiner did not do so. Furthermore, another attempt to secure outstanding medical records is indicated. As noted in the previous remand, Dr. Mair noted in October 2008 that he recently conducted an initial evaluation of the Veteran for hypogonadism, and that it appeared to be related to his PCB exposure. The records of the evaluation itself are not associated with the record; they are pertinent (and perhaps critical) evidence that must be secured. A December 2009 VA outpatient treatment record notes the Veteran has a primary care provider (Dr. Yi) and an endocrinologist (Dr. Prost); complete records from these providers must be secured. Any other records of evaluation or treatment the Veteran received for hypogonadism, must be secured. Notably, the complete history of the disability for which service connection is sought is pertinent evidence; partial records present an incomplete disability picture. The Veteran is advised that a governing regulation provides that when evidence requested in connection with a claim for VA benefits (to include identifying information and/or releases) is not received within a year after the date of request the claim is to be considered abandoned. 38 C.F.R. § 3.158(a). The case is REMANDED for the following: 1. The RO should ask the Veteran to identify (by a chronological listing) all providers of private evaluation and/or treatment he received for his knees and for hypogonadism since his discharge from service, and to submit the releases necessary for VA to secure complete records of all such private evaluation or treatment. The chronological listing and releases must include (but not be limited to) complete treatment records: (1) from Dr.'s Audell, Muller, Yi, Mair, and Prost; (2) complete records of the Veteran's 2008 and 2009 knee surgeries (including reports of pre-operative consultations); (3) records from Huggins hospital relating to a 2004 knee injury; and (4) records of right knee treatment at Navaho Apache Medical Center in 2007. The Veteran should also include the identifying information and releases necessary for VA to obtain records pertaining to his knee injury sustained while working for American Airlines in 2007 (and all records pertaining to any related disability benefits claims). If the Veteran does not respond with the complete information and releases sought, the claim must be further processed under 38 C.F.R. § 3.158(a). If he responds, the RO should secure complete copies of clinical records from all named providers. Negative responses and certifications of unavailability must be associated with the claims file. If any private provider does not respond to a VA request for records sought, the Veteran must be so advised, and advised further that it is his responsibility to ensure that private records are received. To avoid further unnecessary delay or another remand, the RO should adhere to the sequence of development ordered as follows: The RO must ensure that all treatment records sought are secured (or their unavailability is accounted for) before proceeding with the further development outlined below (as any examination and opinion based on an incomplete record would not be adequate for rating purposes). 2. The RO should arrange for the record to be returned to the June 2012 orthopedic examiner for another addendum opinion. Based on a review of the complete record, the examiner should provide an opinion that responds to the following (if that provider is unavailable, the record should be forwarded to another appropriate provider for the opinions sought): a. As to each right and left knee disability entity diagnosed, please indicate whether it is at least as likely as not (a 50% or greater probability) that such is related to the Veteran's active service (to include injury/complaints of knee pain therein). b. Please comment on the June 2008 opinion by the Veteran's private orthopedic surgeon expressing agreement or disagreement with the opinion and explaining the rationale for the agreement or disagreement. For purposes of this examination the provider should accept as credible the Veteran's accounts that he had knee complaints when he was involved in the two MVAs in service, but his knees were not evaluated/treated at such times. The provider must explain the rationale for all opinions, with citation to supporting clinical data and/or medical texts or treatises as deemed appropriate. 3. The RO should also arrange for record to be forwarded to the June 2012 VA examiner for review and an addendum medical advisory opinion regarding the etiology of the Veteran's hypogonadism. The provider should note that it is conceded that the Veteran had some level of exposure to PCBs in service (to include from a 1976 oil spill and cleanup). Based on review of the claims folder, pertinent medical history, and the Veteran's and supporting accounts describing his exposure to PCB's, the consulting provider should provide opinions that respond to the following: a. Is it at least as likely as not (a 50% or greater probability) that the Veteran's hypogonadism is related to his exposure to PCB's in service? b. If the response to (a) is negative, i.e., that the Veteran's hypogonadism is not likely (less than 50 percent probability) related to PCB exposure in service, please identify (with explanation of rationale) the etiology for the Veteran's hypogonadism considered more likely. The explanation of rationale must address the "internet information" that exposure to PCB's has been identified as a possible risk factor for hypogonadism. The consulting provider must explain the rationale for all opinions, with citation to supporting clinical data and/or medical texts or treatises as deemed appropriate. 4. The RO should then review the record, arrange for any further development suggested, and re-adjudicate the claims. If any remains denied, the RO should issue an appropriate supplemental SOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. _________________________________________________ George R. Senyk 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).