Citation Nr: 1326464 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 11-13 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a bilateral knee disorder. 2. Entitlement to service connection for a bilateral ankle disorder. REPRESENTATION Veteran represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1965 to July 1967. He is the recipient of the Purple Heart and the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran claims that service connection for bilateral knee and ankle disorders is warranted. Specifically, he alleges that he injured his knees and ankles when he was jumping out of helicopters and trucks while serving in combat in Vietnam. In November 2010, the Veteran underwent a VA examination to assess the nature and etiology of his claimed bilateral knee and ankle disorders. The examiner diagnosed osteoarthritis of both knees and degenerative joint disease of both ankles. He opined that such disorders were not caused by or a result of the Veteran's service. In this regard, he noted that there was no documentation of an injury or treatment for knee or ankle complaints during the Veteran's active duty. However, such opinion does not address the Veteran's allegation that he injured his bilateral knees and ankles as a result of jumping out of helicopters and trucks during his combat service. In this regard, in cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Federal Circuit has held that, in the case of a combat Veteran, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish entitlement to service connection, however, there still must be evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Accordingly, on remand, an addendum opinion which considers the Veteran's lay statements concerning in-service injuries to the bilateral knees and ankles during his combat service should be obtained from the November 2010 VA examiner. The Veteran also indicated in his substantive appeal (VA Form 9) that his VA treatment provider, A.M.W., a nurse practioner, examined his knees and ankles, and stated that he had jumped out of too many helicopters. Additionally, the record reflects that he current receives treatment through the VA healthcare system. Therefore, while on remand, the Veteran should be given an opportunity to identify or submit any treatment records pertaining to his bilateral knee and ankle disorders or statements addressing the etiology of his such disorders, to include from A.M.W. Thereafter, any identified records, to include those from the Mountain Home, Tennessee, VA Medical Center dated from November 2010 to the present and the Berea, Kentucky, Community Based Outpatient Clinic (CBOC), which is part of the Lexington, Kentucky, VA Medical Center, dated from March 2011 to the present, should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify or submit any treatment records pertaining to his bilateral knee and ankle disorders or statements addressing the etiology of his such disorders, to include from A.M.W. Thereafter, any identified records, to include those from the Mountain Home, Tennessee, VA Medical Center dated from November 2010 to the present and the Berea, Kentucky, Community Based Outpatient Clinic (CBOC), which is part of the Lexington, Kentucky, VA Medical Center, dated from March 2011 to the present, should be obtained for consideration in the Veteran's appeal. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Return the claims file to the VA examiner who conducted the Veteran's November 2010 examination. The claims file and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the claims folder and the Remand have been reviewed. If the November 2010 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. After reviewing the claims file, to include any newly obtained private or VA treatment records, the examiner should offer an opinion on the following: A) Is it at least as likely as not that the Veteran's bilateral knee and/or ankle disorders are related to his military service, to include jumping out of helicopters and trucks during his combat service? B) Did arthritis of the bilateral knees and/or ankles manifest within one year of the Veteran's discharge (i.e., July 1968)? If so, what were the manifestations? The rationale for any opinion offered should be provided. 3. After completing the above, conducting any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate the Veteran's claims based on the entirety of the evidence. If the claims remain denied, in whole or in part, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). 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 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). _________________________________________________ A. JAEGER 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).