Citation Nr: 1332763 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-34 507 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1979 to December 1981 and from October 1982 to February 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which, in relevant part, denied the benefit sought on appeal. The Veteran testified at a hearing before the Board in November 2011. A transcript from that hearing is of record. In April 2012, the Board remanded the Veteran's left knee disability claim for further development. The Board additionally remanded a claim of entitlement to service connection for posttraumatic stress disorder (PTSD); however, the PTSD claim was subsequently granted in a November 2012 rating decision. Thus, that rating decision constituted a full grant of the benefits sought on appeal with respect to the Veteran's PTSD claim. The issues of entitlement to service connection for bilateral shin splints were previously referred to the Agency of Original Jurisdiction (AOJ) in the Board's April 2012 decision. In April 2013, the Veteran again indicated that she was seeking service connection for bilateral shin splints, and additionally raised the claim of entitlement to service connection for chronic headaches. Moreover, a review of the record reflects that although the Veteran's service connection claim for a knee disability was specifically adjudicated as a claim for a left knee disability, she may have been intending to seek service connection for a right knee disability. See July 2007 statement. Thus, a claim of entitlement to service connection for a right knee disability has also been reasonably raised by the record. It appears, however, that none of these additional claims has yet been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. For the reasons described below, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on her part. REMAND In the Board's prior remand of the Veteran's left knee disability claim, the Board instructed that the Veteran should be afforded a VA examination to determine if she had a left knee disability that could be etiologically related to her service. The Board specifically instructed that the VA examiner should address whether the Veteran had a left knee disability that was related to shin splints shown in June 1979. Although the Veteran was afforded a VA examination in May 2012, the VA examiner diagnosed bilateral degenerative joint disease of the knees, and provided the opinion that the Veteran's claimed left knee disability was less likely than not incurred in or caused by any in-service injury, event, or illness. The examiner rationalized this opinion by noting that there were no complaints in the Veteran's service treatment records (STRs) and that there was no post-service complaints of knee pain or injury noted in medical records until 2007. Thus, there was no clinical evidence to substantiate an injury in service or chronic pain until long after discharge. Notably, the VA examiner did not address the evidence pertaining to the Veteran's shin splints, as requested. See C.F.R. § 4.2 (2012) (stating that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes); see also Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with a remand directive, as a matter of law, and the Board itself commits error in failing to ensure this compliance). Just as important, the VA examiner did not address the Veteran's contention that she incurred and was treated for a left knee injury during service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination is inadequate where the examiner does not comment on the Veteran's reports, but instead relies on an absence of medical records to provide a negative opinion). Accordingly, remand is required to address the discrepancies in the VA examination report and to afford the Veteran a new VA examination based on all the evidence of record. The Board additionally observes that in her April 2013 claim for additional disabilities, the Veteran identified private health care providers that apparently provided her with orthopedic treatment for her claimed shin splints. She additionally indicated that she received VA treatment for these claimed disabilities from the Northern California VA Healthcare System. The Board believes these identified records may be relevant to her left knee disability claim on appeal. VA has adopted a regulation requiring that when it becomes aware of relevant private treatment records it will ask the claimant to authorize it to obtain those records. 38 C.F.R. § 3.159(e) (2013). Accordingly, on remand, outstanding records from identified VA and private health care providers must also be obtained. See also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, this claim is REMANDED for the following action: 1. Obtain a complete copy of the Veteran's VA treatment records relevant to her claimed left knee disability claim from the Northern California VA Healthcare System. All reasonable attempts should be made to obtain these 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) (West 2002) and 38 C.F.R. § 3.159(e) (2013). 2. After obtaining any required authorization from the Veteran, request copies of private treatment records relevant to her claimed left knee disability claim from Pine Street Orthopedics, from Kaiser Permanente, and from any other identified health care provider. Ask the Veteran to submit copies of any relevant treatment records in her possession, and inform her that she may obtain and submit identified records herself. All reasonable attempts should be made to obtain identified records. If any identified 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) (West 2002) and 38 C.F.R. § 3.159(e) (2013). 3. Thereafter, schedule the Veteran for a new VA orthopedic examination of her left knee. The claims file and must be made available to and reviewed by the examiner in conjunction with the examination. All necessary studies and tests should be conducted. The examiner should specifically provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current left knee disability had its clinical onset during active service or is related to any in-service disease, event, or injury, to include as a result of the Veteran having suffered from shin splints during her service, as noted in a service treatment record dated in June 1979. The examiner must provide a report including rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions rendered. 4. Readjudicate the Veteran's service connection claim on appeal. If the claim remains denied, provide the Veteran and her representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return her appeal to the Board for further appellate review. The Veteran 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 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). _________________________________________________ James L. March 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. See 38 C.F.R. § 20.1100(b) (2012).