Citation Nr: 1329904 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 09-21 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Service connection for a right knee disability. 2. Service connection for a left knee disability. 3. Service connection for a right leg disorder to include as secondary to service-connected lumbar spine disability or other service-connected disability. 4. Service connection for a left leg disorder to include as secondary to service-connected lumbar spine disability or other service-connected disability. 5. Service connection for a cervical spine disorder to include as secondary to service-connected lumbar spine disability or other service-connected disability. 6. Service connection for sleep apnea to include as secondary to the service-connected major depressive disorder and adjustment disorder. 7. Service connection for headaches to include as secondary to a service-connected disability. 8. Service connection for a left hand disability to include as secondary to a service-connected disability. 9. Service connection for a right hand disability to include as secondary to a service-connected disability. 10. Service connection for sleep disturbance to include as secondary to a service-connected disability. 11. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity. 12. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity. REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from July 1972 to May 1976. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. An April 2009 rating decision denied entitlement to service connection for a cervical spine disability, sleep apnea, left and right knee disabilities, and left and right leg disabilities to include restless leg syndrome. The Veteran perfected an appeal of these issues. In a June 2011 decision, the Board denied service connection for left and right knee disabilities and remanded the issues of service connection for a cervical spine disability, sleep apnea, and left and right leg disabilities to include restless leg syndrome for additional development. In a July 2012 Memorandum decision, the U.S. Court of Appeals for Veterans Claims (Court) vacated and remanded the portion of the June 2011 Board decision which denied service connection for the right and left knee disabilities. The Court found that a remand was required for clarification of the February 2009 VA examination findings regarding the Veteran's bilateral knee conditions. The Court found that the February 2009 VA examination was inadequate because the examiner did not consider the theory of aggravation for service connection. The Court also found the VA examination to be inadequate because the examiner stated that the Veteran had normal knees but also noted that there was abnormal tracking of the patella and a patellar abnormality and the examiner did not explain this contradiction. The Court cited to 38 U.S.C.A. § 5103A(d)(1) and Barr v. Nicholson, 21 Vet. App. 303, 311 (2007), Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), and Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991). Review of the Virtual VA file reveals that an April 2013 rating decision denied entitlement to an initial rating in excess of 10 percent for radiculopathy of the left and right lower extremities, and denied service connection for headaches, a left hand disability, a right hand disability, and sleep disturbance to include on a secondary basis. The Veteran was notified of this decision and he filed a notice of disagreement in April 2013. Under these circumstances, a Statement of the Case should be issued. See Manlicon v. West, 12 Vet. App. 238 (1999). The Board is required to remand, rather than refer, these issues. Id. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) specifically provides that the duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). The Veteran was afforded a VA examination in February 2009 in order to assist in determining the nature and etiology of the claimed bilateral knee disabilities. The Board finds that additional medical examination is necessary in this matter in order to clarify the current diagnosis and etiology of the claimed bilateral knee disorder. The February 2009 VA examination is inadequate because the examiner stated that the Veteran had normal knees but also found there was abnormal tracking of the patella and a patellar abnormality. These contradictory findings need to be clarified. The February 2009 VA examination is also inadequate because the examiner did not consider the theory of aggravation for service connection. The VA examiner did not render a medical opinion as to whether the service-connected chronic lumbosacral strain or other service-connected disability aggravated (permanently worsened) the claimed bilateral knee disorder. See Allen v. Brown, 7 Vet. App. 439 (1995) and 38 C.F.R. § 3.310 (2013). Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one. Barr, 21Vet. App. at 311. As noted, in the June 2011 decision, the Board remanded the issues of service connection for a cervical spine disability, sleep apnea, and left and right leg disabilities to include restless leg syndrome for additional development. It appears that the RO is still developing these issues and such issues have not yet been certified to the Board for appellate review. Review of the record reveals that in April 2013, the Veteran's attorney requested an extension of time to submit a response to a supplemental statement of the case dated March 5, 2013. In August 2013, the Veteran's attorney submitted a response to the March 2013 supplemental statement of the case and evidence to the Board. Review of the Virtual VA file further reveals that VA treatment records were associated with the file after the issuance of the August 2011 supplemental statement of the case, which is the most recent supplemental statement of the case of record. A March 2013 supplemental statement of the case is not associated with the claims file or the Virtual VA file. Further, it does not appear that the RO has responded to the attorney's request for an extension of time to respond to the supplemental statement of the case pursuant to 38 C.F.R. § 20.303 (2013). The RO should address the April 2013 request for an extension of time to respond to the March 2013 supplement statement of the case. The Board also finds that the RO should take the appropriate action with respect to the additional evidence associated with the claims file after August 2011 and issue a supplemental statement of the case if required. See 38 C.F.R. § 19.37 (2013). Review of the Virtual VA file reveals that an April 2013 rating decision denied an initial rating in excess of 10 percent for radiculopathy of the left and right lower extremities, and denied service connection for headaches, a left hand disability, a right hand disability, and sleep disturbance, to include on a secondary basis. The Veteran was notified of this decision and he filed a notice of disagreement in April 2013. Under these circumstances, a Statement of the Case should be issued. See Manlincon v. West, 12 Vet. App. 238 (1999). The Board is required to remand, rather than refer, these issues. Id. The RO should contact the Veteran by letter and request that he provide sufficient information and, if necessary, authorization to enable the RO to obtain any pertinent VA or non-VA clinical records showing treatment of the claimed disabilities. The RO should make an attempt to obtain copies any outstanding records from any identified treatment source. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to identify any source of VA or non-VA medical treatment rendered for the claimed disabilities not previously obtained. The letter should request sufficient information to identify the health care providers, and if necessary, signed authorizations, to enable VA to obtain any additional evidence. If the Veteran adequately identifies the health care providers and provides the completed authorizations, the RO should request legible copies of all pertinent clinical records that have not been previously obtained and should incorporate them into the claims file. 2. Schedule the Veteran for a VA examination to assist in determining the nature and likely etiology of the claimed bilateral knee disorder. The claims folder should be made available to the examiner for review in connection with the examination. All appropriate tests and studies (to include x-rays, if needed) should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should report all current diagnoses pertinent to the knees. The examiner should address the findings of the February 2009 VA examination and clarify whether the finding of abnormal tracking of the patella is a current knee disability or diagnosis. After examining the Veteran and reviewing the entire record, the VA examiner should offer the following opinions: A) Is it as likely as not (50 percent or greater probability) that any current knee disability first manifested during active service or is caused by an event or incident of active service? B) Is it as likely as not (50 percent or greater probability) that any current knee disability is caused by the service-connected chronic lumbosacral strain or other service-connected disability? C) Is it as likely as not (50 percent or greater probability) that any current knee disability is aggravated (worsened in severity beyond a normal progression) by the service-connected chronic lumbosacral strain or other service-connected disability? The examiner should state the reasons for any opinion expressed. 3. Address the April 2013 request for an extension of time to respond to the March 2013 supplement statement of the case. 4. Furnish a Statement of the Case as to the issues of entitlement to initial ratings in excess of 10 percent for radiculopathy of the left and right lower extremities, and service connection for headaches, a left hand disability, a right hand disability, and sleep disturbance to include on a secondary basis. Only if the Veteran perfects an appeal as to these matters should it be certified and returned to the Board for the purpose of appellate review. 5. After completing all indicated development, readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, then a fully responsive Supplemental Statement of the Case should be furnished to the Veteran and his representative and they should be afforded a reasonable opportunity for response. 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). The Veteran is advised to appear and participate in any scheduled VA examination(s), as failure to do so may result in denial of the claim(s). See 38 C.F.R. § 3.655 (2013). 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). _________________________________________________ J. PARKER 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) (2013).