Citation Nr: 1325854 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-01 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for low back disability. 2. Entitlement to service connection for left knee disability. 3. Entitlement to service connection for right knee disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and Mr. A.O. ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from June 1959 to May 1963 with a prior period of service in the United States Marine Corps Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the Veteran's claims. During the course of the appeal, jurisdiction of the Veteran's case was transferred to the Phoenix, Arizona, RO. In March 2011, the Veteran presented sworn testimony during a personal hearing in Phoenix, Arizona, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. The issues on appeal are 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 For the reasons set forth below, the Board finds that the issues on appeal must be remanded for further development. Here, the Veteran asserts entitlement to service connection for disabilities of the lumbar spine as well as the left and right knees, which he claims are due to his military service. The Veteran has contended that he injured his low back in 1959 when he fell on a wash rack while at the U.S. Naval Training Center in San Diego. See, e.g., the Board hearing transcript dated March 2011 & the Veteran's VA Form 21-4142 dated December 2008. He also indicated that he injured his knees during a 1961 incident in which an airplane tire exploded while he was performing repairs. Id. With respect to the Veteran's contentions, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board initially notes that the Veteran's claims file contains only the DD-214 from his period of service in the United States Navy from June 1959 to May 1963. This DD-214 indicates that the Veteran had prior military service, which he asserts was performed in the United States Marine Corps from May 1956 to June 1959. Although the majority of the Veteran's Marine Corps service records are not of record, the claims file does contain an April 1956 Department of Navy letter in which the Veteran's Marine Corps Reserves company was ordered to annual field training. Accordingly, the Board finds that the Veteran's service treatment records from his Reserves service should be obtained and associated with his claims file. Additionally, the Veteran has contended that he was placed on a light duty physical profile as a result of his in-service knee injuries. See the March 2011 Board hearing transcript, pg. 8. The Veteran's service treatment records from this period of service do not contain evidence of either the in-service injury or claimed physical profile. It is possible that service personnel records might shed more light on the Veteran's contentions. Under these circumstances, the Board believes that it is appropriate to obtain the Veteran's service personnel records (if available) for his periods of military service to include his prior Reserves service. See Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999) (VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile.) As suggested above, the Veteran's service treatment records do not document any complaints of or treatment for low back, right knee, or left knee injuries. However, the Veteran has submitted numerous statements as well as personal testimony indicating that he experienced back and knee injuries and continuing symptomatology during his military service. See, e.g., the March 2011 hearing transcript. To this end, the Board recognizes that the Veteran is competent to testify as to his symptoms such as pain and discomfort. See Barr v. Nicholson, 21 Vet. App. 303 (2007), citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), (lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness' personal knowledge). Post-service VA treatment records show x-rays of the left knee demonstrating degenerative changes in October 1995 and October 1996. Also, a December 1998 VA treatment record indicated "chronic pain in the knees." A December 2001 VA treatment record noted that the Veteran suffered from a "knee cartilage injury" with a right knee cartilage repair performed in 1974. With regard to the low back, a March 2004 VA treatment record documented the Veteran's complaints of low back pain. Magnetic resonance imaging (MRI) performed in July 2007 documented multiple bulging discs and stenosis in the lumbar region. See the VA treatment record dated July 2007. VA treatment records also noted additional mid-back pain following the Veteran's August 2008 fall from a roof. See the VA treatment records dated November 2008. The Veteran is currently diagnosed with degenerative disc disease of the lumbar spine. See the VA treatment records dated January 2009. There is no competent evidence of medical nexus currently of record with respect to either the claimed low back, right knee, or left knee disabilities. Thus, these claims present certain medical questions concerning diagnosis and nexus, which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). These questions must be addressed by an appropriately qualified physician. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Accordingly, upon remand, the Veteran should be afforded a VA examination to address the outstanding questions of diagnosis and nexus pertaining to the pending claims. Additionally, review of the record reflects ongoing VA medical treatment. Thus, on remand, any previously unobtained ongoing relevant medical records should be procured and associated with the Veteran's claims file. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate releases where necessary, procure any records of outstanding treatment and/or evaluation that the Veteran has recently received. The Board is particularly interested in VA treatment records from the VA medical center in Tucson, Arizona, or any other VA medical facility, dating from January 2009. All such available documents should be associated with the claims file. 2. Contact the appropriate records custodians in order to obtain the Veteran's service treatment records and service personnel records from his service in the U.S. Marine Corps Reserves from April 1956 to June 1959 as well as his service personnel records from his service in the U.S. Navy from June 1959 to May 1963. Any response should be associated with the Veteran's claims file. If said records cannot be obtained, provide the Veteran with specific notice of the unavailability of these records pursuant to 38 C.F.R. § 3.159(e)(1). All such available records should be associated with the Veteran's claims file. 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of the claimed low back, right knee, and left knee disabilities. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner should elicit from the Veteran a detailed account of any instances of in-service and post-military back and knee symptomatology. The examiner should either diagnose or rule out current disabilities of the right and left knees. After reviewing the file, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that any current low back, right knee, or left knee disability had its clinical onset during the Veteran's active duty or is otherwise related to such service. In answering this question, the examiner should address the Veteran's post-service medical history to include his assertions of continuity of symptomatology dating from his military service. The examiner should provide a complete rationale for any opinion given, including discussion of evidence contrary to the opinion rendered. 4. Thereafter, readjudicate the claims on appeal. If any benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. The Veteran 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (the Court) 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). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).