Citation Nr: 1326414 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 09-20 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida 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 a low back disability. 4. Entitlement to service connection for a skin rash. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran had active duty service from January 2003 to March 2004. The Veteran also had verified service with the Army National Guard, to include a period of active duty for training (ACDUTRA) from January 2002 to April 2002, and periods of inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement (NOD) was received in July 2008. A statement of the case (SOC) was issued in May 2009. The Veteran perfected his appeal in June 2009. The Board notes that the NOD originally contained an appeal of the issue of posttraumatic stress disorder; however, this claim was not perfected, and as such, is not before the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran seeks service connection for a low back disability, right knee disability, left knee disability, and a skin rash, which he asserts are related to his military service. As stated above, the Veteran has periods of active duty, ACDUTRA, and INACDUTRA service. With regard to the claimed low back disability and skin rash, the record contains treatment records and a post-deployment health assessment showing the Veteran had treatment for these disabilities during his period of active duty service. However, the Veteran does not specify when his knee disabilities arose. The record contains one treatment record, dated in August 2007, which shows the Veteran sought treatment for knee pain and was diagnosed with a bone spur in the knee (which knee is not identified). It is unclear from the record if this treatment occurred during a period of ACDUTRA or INACDUTRA. As such, it is appropriate to request the Veteran's service treatment and service personnel records from all periods of service, to include the dates of the Veteran's ACDUTRA and INACDUTRA. (The Board notes that the file contains a notation that service treatment records may have been lost in transit, however, there is no formal finding of unavailability contained in the record). The Board notes the Veteran has not been afforded VA examinations to determine the nature, extent and etiology of his left knee, right knee, and skin disabilities. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that the McLendon criteria are met in this case. A post-deployment self assessment from the Veteran's active duty service shows the Veteran complained of a skin disease or rash. Post-service treatment records show the Veteran was treated for a recurrent skin rash and pruritic skin with welts. Therefore, an examination is warranted to address the nature, extent and etiology of his skin disability. Additionally, as mentioned above, the record shows the Veteran sought treatment for a knee disability during his service, and alleges that a bone chip remains. As such, an examination is warranted; specifically, it must be determined if there is a nexus between his disabilities and his active duty service, ACDUTRA, or INACDUTRA. Finally, the Board notes the Veteran was afforded a VA examination for his low back disability in December 2007. However, the Board finds this examination to be inadequate for adjudication purposes. Specifically, the examiner failed to give an adequate opinion; instead relied on speculation and did not address the Veteran's complaints of back pain. Once VA provides an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). An additional examination is warranted. Finally, on his June 2009 substantive appeal, the Veteran alleged he continued to seek treatment at the VA medical center. The last treatment record contained in the file is dated February 2008. As such, updated VA treatment records must be secured for the record. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain copies of the Veteran's service treatment and personnel records (to include National Guard records) from the appropriate record depository. Additionally, the RO should request the dates of the Veteran's active duty, ACDUTRA, and INACDUTRA. All requests for records and their responses must be associated with the claims folder. 2. The RO should attempt to obtain copies of all pertinent outstanding VA treatment records from February 2008 to the present. 3. The Veteran should be scheduled for appropriate VA examinations in connection with his claims for service connection for right knee, left knee, lower back, and skin disabilities. It is imperative that the claims files be made available to the examiner(s) for review in connection with each examination. The examiner(s) must be given a list of the Veteran's verified periods of active duty, ACDUTRA, and INACDUTRA. After reviewing the records, and examining the Veteran, the examiner is specifically asked to determine: a. Left knee: i. Does the Veteran have a currently diagnosed left knee disability? ii. If yes, is it at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's left knee disability had its onset during the Veteran's active duty service or is otherwise medically related to the Veteran's active duty service. Or, iii. Is it at least as likely as not (i.e., there is a 50 percent or greater probability) that the left knee disability initially manifested during a period of ACDUTRA or INACDUTRA. If so, the examiner should offer an opinion as to whether the disability is the result of injury or repeated trauma. A detailed rationale should be furnished for all opinions. b. Right knee: i. Does the Veteran have a currently diagnosed right knee disability? ii. If yes, is it at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's right knee disability had its onset during the Veteran's active duty service or is otherwise medically related to the Veteran's active duty service. Or, iii. Is it at least as likely as not (i.e., there is a 50 percent or greater probability) that the right knee disability initially manifested during a period of ACDUTRA or INACDUTRA. If so, the examiner should offer an opinion as to whether the disability is the result of injury or repeated trauma. A detailed rationale should be furnished for all opinions. c. Skin Disability: i. Does the Veteran have a currently diagnosed skin disability? ii. If so, is it at least as likely as not (a 50% or higher degree of probability) that the skin disability is causally related to the Veteran's active duty service? A detailed rationale should be furnished for all opinions. d. Lower Back: i. Does the Veteran have a currently diagnosed lower back disability? ii. If so, is it at least as likely as not (a 50% or higher degree of probability) that the lower back disability is causally related to the Veteran's active duty service, to include the August 2003 injury as alleged by the Veteran? A detailed rationale should be furnished for all opinions. 4. The RO should then review the examination reports to ensure that the above questions have been clearly answered and a rationale furnished for all opinions. If not, appropriate action should be taken to remedy any such deficiencies in the examination report. 5. Thereafter, the RO should review the expanded record and readjudicate the issues on appeal. If the benefits sought on appeal are not granted, the Veteran should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ ALAN S. PEEVY 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).