Citation Nr: 1330325 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 09-46 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for a left foot disability. 5. Entitlement to service connection for gastroesophageal reflux disease. 6. Entitlement to service connection for a prostate disability. WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J.M. Seay, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from August 1965 to July 1974 and served on active duty in the United States Army from November 2003 to May 2005. The Veteran also had Naval Reserve service and service in the Minnesota National Guard and the Washington National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In a June 2013 rating decision, service connection for dermatitis (claimed as eczema) was granted. As this represents a total grant of the benefits sought on appeal with respect to this issue, it is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The Veteran testified at a March 2013 travel board hearing before the undersigned Veterans Law Judge at the Seattle, Washington RO. A transcript of that hearing has been associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In May 2013, the Board remanded the Veteran's case for additional development. The remand instructed the RO/AMC to obtain all outstanding service treatment records and service personnel records from the Veteran's second period of active service, the United States Naval Reserve, the Washington National Guard, and the Minnesota National Guard. Following the May 2013 remand, the AMC contacted the Washington National Guard and requested all records. In June 2013, the Washington National Guard responded that there were no "medical/dental" records for the Veteran. The AMC did not notify the Veteran regarding the negative response. The AMC printed the Official Military Personnel File (OMPF) from the Defense Personnel Records Image Retrieval System (DPRIS) and associated the records with the claims file. Therefore, the request to obtain all service personnel records was completed in accordance with the Board's remand. However, in the May 2013 remand, the RO/AMC was asked to attempt to verify the Veteran's periods of ACDUTRA and INACDUTRA. The AMC requested leave and earnings statements from the Defense Finance Accounting Service (DFAS). However, the AMC only requested leave and earnings statements from November 2003 to May 2005, when the Veteran was on active duty in the United States Army. The AMC did not request leave and earnings statements prior to November 2003 or after May 2005. As explained above, the Veteran served in the Minnesota National Guard and the Washington National Guard prior to November 2003 and served in the Washington National Guard after May 2005. Therefore, the AMC must submit a new request to DFAS for leave and earnings statements prior to November 2003 and after May 2005. In addition, it does not appear that the AMC made efforts to obtain service treatment records pertaining to the Veteran's service in the Minnesota National Guard, the United States Naval Reserve, or from the Veteran's second period of active service in the United States Army. The Board acknowledges that the claims file contains copies of service treatment records from the Veteran's service in the National Guard and from his second period of active service in the United States Army. However, as noted by the Board in the May 2013 remand, the Veteran indicated that the copies may not represent a complete record. RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, a remand is required to comply with the Board's May 2013 remand instructions. The Board's remand requested that the Veteran be provided a VA examination with respect to his claim for service connection for a back disability. The Veteran was provided a VA examination in May 2013. The examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was that there was "no documentation of injury or back conditions during active duty, ACDUTRA, or INACDUTRA." The examiner also stated that in 1995, x-rays showed evidence of mild "DDD" which would have been consistent with the Veteran's age at that time. However, as noted by the Board in the May 2013 remand, the evidence is not clear and unmistakable that a disability existed prior to the second period of active service due to multiple normal evaluations of the spine after the 1995 x-ray. The service treatment records dated during the Veteran's second period of active service in the United States Army indicate that the Veteran was diagnosed with a back strain. Therefore, the examiner's opinion is inadequate and a new opinion is required to comply with the Board's remand. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran regarding the negative response for service treatment records from the Washington National Guard. 2. Submit a request to DFAS for all leave and earnings statements prior to November 2003 and after May 2005. Document all attempts to obtain the records. In the event that it is determined that the records are unavailable or further efforts would be futile, provide the Veteran with appropriate notice. 3. Contact the National Personnel Records Center (NPRC), the Records Management Center, and the Minnesota National Guard, and any other appropriate records depository, to obtain all of the Veteran's outstanding service records, to include service treatment records from the Veteran's second period of active service (November 2003 to May 2005) in the United States Army, the United States Naval Reserve, and the Minnesota National Guard. Document all attempts to obtain the records. In the event that it is determined that the records are unavailable or further efforts would be futile, provide the Veteran with appropriate notice. 3. Forward the claims file to the May 2013 VA examiner to provide an addendum opinion to the May 2013 VA examination report. If the May 2013 VA examiner is unavailable, forward the claims file to another suitably qualified examiner. The examiner is asked to address the following: Provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or higher) that any back disability had its onset in active service or is otherwise related to active service, to include any period of ACDUTRA and INACDUTRA. A clear rationale must be provided for any opinion reached. 4. If, and only if, additional records are received in response to the aforementioned records requests, forward the claims file to the May 2013 VA examiner to provide addendum opinions to the May 2013 VA examination report. If the examiner is unavailable, forward the claims file to another suitably qualified examiner. The examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) that any left knee disability had its onset in active service or is otherwise causally or etiologically related to active service, to include any period of ACDUTRA and INACDUTRA. b. Provide an opinion concerning whether it is at least as likely as not (50 percent probability or higher) that any right knee disability had its onset or is otherwise related to the Veteran's first period of active service. c. Provide an opinion concerning whether it is at least as likely as not (50 percent probably or higher) that the Veteran's right knee disability had its onset or is otherwise related to a period of ACDUTRA or INACDUTRA. d. With respect to the second period of active service, the examiner must address whether the preexisting right knee disability (chondromalacia patella) worsened during service and, if so, whether it is clear and unmistakable (obvious and manifest) that it was not aggravated by service beyond the natural progression of the disease. With respect to any other diagnosis related to the right knee, provide an opinion concerning whether it is at least as likely as not (50 percent probably or higher) that any right knee disability had its onset or is otherwise related to the second period of active service. e. With respect to service in the Washington National Guard following the second period of active service, the examiner must address whether any right knee disability (chondromalacia patella) worsened during a period of ACDUTRA or INACDUTRA and, if so, whether it was clearly and unmistakably (obviously and manifestly) not aggravated beyond its natural progression. With respect to any other diagnosis of the right knee, provide an opinion as to whether it is at least as likely as not (50 percent probably or higher) that any right knee disability had its onset or is otherwise related to a period of ACDUTRA and/or INACDUTRA. f. Provide an opinion concerning whether it is at least as likely as not (50 percent probability or greater) that any GERD had its onset or is otherwise causally or etiologically related to the Veteran's first period of active service. g. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any GERD had its onset or is otherwise related to a period of ACDUTRA. h. With respect to the second period of active service, the examiner must address whether the preexisting GERD worsened during service and, if so, whether it is clear and unmistakable (obvious and manifest) that it was not aggravated by service beyond the natural progression of the disease. i. With respect to any period of ACDUTRA or INACDUTRA in the Washington National Guard following the second period of active service, the examiner must address whether any GERD worsened during a period of ACDUTRA, and if so, whether it is clear and unmistakable (obvious and manifest) that it was not aggravated by service beyond the natural progression of the disease. j. Provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) that any prostate disability had its onset in active service or is otherwise causally or etiologically related to active service, to include any period of ACDUTRA. The examiner should discuss the reports of dysuria and dehydration during the Veteran's second period of active service and the notation of high PSA levels in October 2006, shortly after separation from active service. Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. A clear rationale must be provided for any opinion reached. 5. The RO/AMC should thereafter readjudicate the claims. If any benefit sought on appeal remains denied, the RO/AMC should thereafter provide the Veteran and his representative with a supplemental statement of the case (SSOC). A reasonable period of time should be allowed for response before the appeal is returned to the Board. The appellant 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). 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).