Citation Nr: 1330770 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 11-05 185 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a right hip disorder. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for bilateral leg pain. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran appellant had active service in the United States Navy from August 1974 to November 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In August 2011, a Travel Board hearing was held at the RO before the undersigned Veterans Law Judge. The transcript from that hearing is in the claims file. In connection with that hearing, the appellant submitted evidence directly to the Board. This evidence consisted of copies of SSA records and VA treatment records that were duplicative of records in the claims file. The appellant also submitted a written waiver of RO consideration of the additional evidence. See 38 C.F.R. §§ 19.37, 20.1304. In September 2013, the appellant submitted additional VA treatment records along with a written waiver of RO consideration of the additional evidence. Therefore, the case is ready for appellate review. In addition to the paper claims files, there is an electronic file (Virtual VA) associated with the claims. Virtual VA does not currently contain any evidence pertinent to the claims that is not already included in the paper claims files. The issue of entitlement to nonservice-connected pension was denied by the RO in a May 2010 rating. In July 2010, additional pertinent evidence, namely Social Security Administration (SSA) records, were added to the claims file; these records indicated that the Veteran had been granted SSA disability benefits based on the presence of bilateral hip osteoarthritis and based on the presence of discogenic and degenerative back disorders for which he has not been rated for pension purposes. The pension issue has not been re-adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the matter, and it is referred to the AOJ for appropriate action. 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 A determination has been made that additional development is necessary with respect to the issues on appeal. Accordingly, further appellate consideration will be deferred and this case remanded to the AMC/RO for action as described below. Review of the appellant's service medical treatment records reveals that he underwent evaluation by an "N.A.B. Board' just before he was discharged from service. However, the associated report is not included in the evidence of record. The appellant has indicated that he was discharged (after only 13 weeks of service) because of residuals from injuries to his right upper leg and left knee that caused him to repeatedly seek medical attention. The appellant's service personnel records and the N.A.B. Board report might shed some light on the question of whether or not the appellant was discharged due to these problems. VA is, therefore, on notice of records that may be probative to the claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). VA also has a responsibility to obtain records generated by Federal government entities that may have an impact on the adjudication of a claim. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). On remand, these records should be obtained and associated with the claims file. Review of the appellant's service medical treatment records also reveals that he was treated for complaints of right thigh pain of three months' duration in October 1974. The clinical impression was a torn muscle in the right thigh. A January 2012 VA radiology report states that there was a suggestion of myositis ossificans in the right thigh. The VA medical opinion of record does not address this right thigh condition. That VA medical opinion also does not address the appellant's contention that his current left knee arthritis is related to his reported left knee injury or his contention that his current bilateral leg pains are due to his in-service lower extremity complaints. On remand, a medical opinion addressing these points must be addressed. Thus, while the RO did arrange for a medical examination of the appellant, the examiner's findings were inadequate (in part because not all pertinent records were included in the claims file), and would not withstand judicial review. See Shipwash v. Brown, 8 Vet. App. 218, 222 (1995); Flash v. Brown, 8 Vet. App. 332, 339-340 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the veteran's claims folder). Accordingly, a new medical opinion is necessary to make a determination in this case. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that 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 or, at a minimum, notify the claimant why one will not or cannot be provided). Thus, this case must be remanded so that all pertinent records can be obtained and so adequate medical opinions can be generated. These considerations require further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own unsubstantiated medical opinions. See Colvin v. Derwinski, Vet. App. 171, 175 (1991). In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Board's task is to make findings based on evidence of record--not to supply missing facts. Beaty v. Brown, 6 Vet. App. 532 (1994). Thus, where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). On remand, these deficiencies must be rectified. To ensure that VA has met its duty to assist in developing the facts pertinent to the claim on appeal and to afford full procedural due process, the case is REMANDED for the following: 1. Assure that all notification and development action required by 38 U.S.C. A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159 and any other applicable legal precedent has been completed. 2. Search, at the National Personnel Records Center, or other appropriate sources, for the rest of the Veteran's Navy service medical/psychiatric treatment records and for his service personnel records (Official Military Personnel File (OMPF)) or alternative records. In particular, the Veteran's 1974 N.A.B. Board report must be obtained. In addition, the Veteran's Navy narrative performance evaluation reports (including records relating to his early discharge) must be obtained. If any location contacted suggests other sources, those sources should be encompassed by the search. 3. To the extent there is an attempt to obtain any of these records that is unsuccessful, the claims file must contain documentation of the attempts made. The Veteran must also be informed of the negative results and be given opportunity to secure the records. 4. After completing any additional notification and/or development action deemed warranted by the record, arrange for a review of the Veteran's claims file by an orthopedist or orthopedic surgeon in order to determine the nature, onset date and etiology of the Veteran's claimed right hip, left knee and bilateral leg disorders. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA) must be reviewed. If the reviewing physician does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available must be printed and associated with the paper claims file so they can be available to the reviewer. The reviewing doctor must consider the information in the claims file in providing an opinion as to the nature, extent, onset date and etiology of any right hip/thigh, left knee or lower leg pathology found, including whether the current arthritis existed within one year of the Veteran's discharge from active service in November 1974. In assessing the relative likelihood as to origin and etiology of each one of the claimed disorders, the reviewer must apply the standard of whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the claimed disorder is causally or etiologically related to the Veteran's service from August 1, 1974 to November 6, 1974, or whether such a causal or etiological relationship is unlikely (i.e., less than a 50 percent probability), with the rationale for any such conclusion set out in the report. The reviewing physician must discuss the clinical significance of the Veteran's treatment for complaints of right thigh pain in October 1974, and his treatment post-service, particularly in relation to his recent complaints, clinical finding, diagnoses and radiographic/imaging results, including any osteoarthritis and/or myositis ossificans. Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it. If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the reviewer must clearly and specifically so specify in the report, and explain why this is so. In this regard, if the reviewer concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the reviewer must state whether the inability to provide a definitive opinion was due to a need for further information (with that needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the Veteran's current claimed right hip/thigh, left knee and/or lower leg pathology. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 5. If the reviewing physician concludes that an examination of the Veteran is needed before an opinion can be rendered, schedule the Veteran for said examination. 6. Upon receipt of the VA reviewer's report, conduct a review to verify that all requested opinions have been offered. If information is deemed lacking, VA must refer the report to the VA reviewer for corrections or additions. See 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the examination report as inadequate for evaluation purposes.). 7. After all appropriate development has been accomplished, consider all of the evidence of record and re-adjudicate the Veteran's claims. Ensure that all theories of service connection are considered. 8. If any benefit sought on appeal remains denied, provide a supplemental statement of the case (SSOC) to the Veteran and his representative. The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the service connection issues currently on appeal. An appropriate period of time for response must be allowed. The appellant 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 appellant is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. These claims 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).