Citation Nr: 1331643 Decision Date: 10/01/13 Archive Date: 10/07/13 DOCKET NO. 09-22 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from June 1973 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran provided testimony before a Decision Review Officer (DRO) at the RO in December 2009. He also provided testimony at a personal hearing before the undersigned Veterans Law Judge sitting at the RO in July 2011. Transcripts of both hearings have been associated with the Veteran's claims file. In February 2012, the Board remanded the instant matters to the RO for additional development and readjudication. The case now returns for further appellate review. The Board observes that, in June 2011, the Veteran submitted a VA Form 21-22a (Appointment of Individual as Claimant's Representative) in which he designated Charles Brown, a private attorney, as his representative. In November 2012, the Veteran submitted a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) in which he designated Disabled American Veterans (DAV) as his representative. Therefore, DAV is recognized as the Veteran's current representative as shown on the first page of this decision. 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 with the exception of a September 2013 Informal Hearing Presentation (IHP) submitted by the Veteran's representative. Subsequent to the issuance of the December 2010 supplemental statement of the case (SSOC), additional evidence pertinent to the Veteran's claims has been received. The Veteran's representative waived agency of original jurisdiction (AOJ) consideration of such evidence in its September 2013 IHP. 38 C.F.R. § 20.1304 (2012). Therefore, the Board may properly consider such newly received evidence. 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 claim so that he is afforded every possible consideration. In addition, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Once the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. §§ 4.2, 19.9 (2012). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). At his hearings and in documents of record, the Veteran contends that, while serving as a parachutist during his military service, his repeated landings ultimately injured his back and bilateral knees. Therefore, he claims that service connection for such disorders is warranted. In February 2012, the Board noted that the Veteran had previously been afforded VA examinations of his back and knees in May 2009 and March 2010 (the latter of which included a November 2010 addendum opinion). Additionally, the Board observed that an October 2009 private opinion from Dr. B.P. was of record. However, for various reasons, the Board determined that such VA and private opinions were inadequate to decide the issues. The Board further noted that the Veteran's then-attorney indicated that he would be submitting an opinion from a private physician, Dr. M.J.L.; however, such had not been received. Therefore, the Board remanded the instant matters to obtain Dr. M.J.L.'s examination and opinion. The Board further instructed that, if the Veteran did not provide authorization or submit the report in a reasonable amount of time, or if the report does not contain sufficient evidence to fairly adjudicate the Veteran's claims, then the AOJ should schedule the Veteran for a new VA examination in order to determine the etiology of his back and bilateral knee disorders. Finally, the Board directed that, if the Veteran's claims remained denied, he and his representative should be issued a supplemental statement of the case (SSOC). In April 2012, the AOJ received Dr. M.J.L.'s private examination reports and opinion. Unfortunately, it does not appear that the AOJ took any additional action with regard to the Veteran's claims, to include issuing a SSOC. The Board has reviewed the August 2011 and September 2011 private opinions. The provider noted that the Veteran's symptoms were consistent with traumatic arthritis and that the risk factors of such a disability included the sex of the patient, a history of trauma, weight and age. In addition, the provider opined that the Veteran's arthritis "could have been contributed to and from the training and jumps that occurred during service." The Board finds that service connection cannot be granted based on this opinion as is speculative in nature. 38 C.F.R. § 3.102 (2012); see also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (a generic statement about the possibility of a link is too general and inconclusive); Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993), (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship); Morris v. West, 13 Vet. App. 94, 97 (1999) (a diagnosis that the appellant was "possibly" suffering from schizophrenia was deemed speculative). Therefore, as the VA examinations of record have been previously found to be inadequate by the Board and there is no other conclusive opinion is of record, the Board finds that a remand is required in order to obtain an adequate medical opinion. Barr, supra. A remand is therefore necessary in order to obtain an opinion regarding the etiology of the Veteran's claimed back and bilateral knee disorders and to ensure compliance with the Board's previous remand orders. Furthermore, while the case was in remand status, the Veteran and his then-attorney indicated that he had received treatment from the Ann Arbor, Michigan, VA Medical Center. Additionally, while he submitted authorization forms to release Dr. M.J.L.'s examination and opinion documents, dated in August 2011 and September 2011, to VA, such were previously associated with the claims file. Therefore, while on remand, the Veteran should be given another opportunity to identify any VA or non-VA healthcare provider who treated him for his bilateral knee and back disorders. Thereafter, all identified treatment records, to include those from the Ann Arbor VA Medical Center, should be obtained for consideration in the Veteran's appeal. Finally, after completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence, to include all evidence received since the issuance of the December 2010 supplemental statement of the case. If the claims remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with an opportunity to identify any VA or non-VA healthcare provider who treated him for his bilateral knee and back disorders. Thereafter, all identified treatment records, to include those from the Ann Arbor VA Medical Center, should be obtained for consideration in the Veteran's appeal. All reasonable attempts should be made to obtain such 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. After obtaining any outstanding records, the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his claimed back and knee disorders. All indicated tests and studies should be undertaken. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. The examiner is asked to furnish an opinion with respect to the following questions: a) Identify all diagnoses related to the Veteran's claimed back and/or bilateral knee disorders. The examiner should identify all such disorders that have been present at any time since March 2008. (b) For each diagnosed back and/or bilateral knee disorders, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that each such disorder is related to the Veteran's military service, to include his 30 documented parachute jumps between December 1973 to May 1977. In offering any opinion, the examiner must consider the full record, to include the Veteran's and other's lay statements regarding the incurrence of this injuries while jumping and continuity of symptomatology since service as well as the various medical opinions of record, to include those offered by VA examiners in May 2009 and March 2010 (with an addendum opinion) and private physicians Dr. B.P. in October 2009 and Dr. M.J.L. in August 2011 and September 2011. The rationale for any opinion offered should be provided. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence, to include all evidence received since the issuance of the December 2010 supplemental statement of the case. If the claims remains denied, 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 matters 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).