Citation Nr: 1332807 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 06-15 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from August 1972 to March 1979. He also served in the Naval Reserves in August 1972 and National Guard from March 1979 to September 1987. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In an October 2005 rating decision, the RO denied service connection for a cervical spine disability. In a March 2007 rating decision, the RO denied service connection for a right knee disability. In November 2010, the Veteran presented testimony in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims folder. In March 2011 and August 2012, the Board remanded this matter for further development, which has been completed, and the case has been returned to the Board for appellate consideration. In an April 2011 letter, the Veteran appears to intent to file a claim for an increased evaluation for service-connected posttraumatic stress disorder. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, 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 The Veteran's service treatment records show that he injured his right knee during active duty, and he alleges that he injured his right knee not only in a motor vehicle accident during National Guard service in June 1979 but also during National Guard service in 1982 and 1987, including falling out of a tree in 1987 (see March 2008 statement). The Veteran alleges that he injured his neck not only in the 1979 motor vehicle accident during National Guard service but also in an accident in 1985 while in a fire direction center vehicle, from falling out of a tree in 1987, and wearing heavy Kevlar helmets during National Guard service (see March 2008 and September 2012 statements). There are no service treatment records verifying right knee injuries in 1982 and 1987 and neck injuries in 1985 and 1987, but other the some records from the 1979 accident no service treatment records from the National Guard are available The Veteran is competent to report these injuries, and in light of the absence of service treatment records, the Board finds him credible. While the VA examiners addressed whether the current right knee disability is related to in-service right knee treatment during active duty and the June 1979 accident, the examiners did not address whether the right knee disability is related to the right knee injuries in 1982 and 1979, nor were they asked to address these matters pursuant to prior remands. Similarly, although the examiners addressed whether the current cervical spine disability is related to the June 1979 accident, the examiners did not address whether the cervical spine disability is related to the neck injuries in 1985 and 1987, nor were they asked to address those matters in prior remands. In his February 2008 VA Form 9, the Veteran in essence said that he lacerated his right knee during his June 1979 accident and that he needed several stitches. The limited service records from that accident show no evidence of a laceration of the right knee and indeed only show a contusion of the left leg. While recent VA examinations show scarring of the right knee, there is also a history of knee surgery. In light of the above, another VA examination is unfortunately necessary to determine whether the scarring is consistent with a laceration and to address whether the right knee and cervical spine disabilities are related to all reported in-service injuries. The June 2013 VA examination report reflects that the Veteran currently receives VA treatment. In his February 2004 claim, the Veteran reported that Dr. K. of Saginaw performed his cataract surgery in 2000. In an April 2009 statement, the representative, however, claimed that Dr. K. from the Saginaw VA Medical Center performed the Veteran's knee surgery. Given that Dr. K supposedly performed two very different types of surgeries, the AMC should get clarification on whether the claimant underwent knee surgery at the Saginaw VA Medical Center and if so when. The RO obtained all records from the Saginaw VA Medical Center from February 2004 to March 2006. The AMC should request all records from that facility since March 2006 as well as any records prior to March 2004 pertaining to knee surgery. The Veteran's service treatment records shows that he was treated by Dr. Barry in Saginaw, Michigan, for injuries from the June 1979 motor vehicle accident. It does not appear that VA has attempted to obtain records from Dr. Barry. Additionally, while the RO requested records from Dr. Pietrus, the records received pertained to the Veteran's son whose claim for permanent incapacity for self-support was adjudicated by the Board rather than the Veteran. At the November 2010 hearing, the Veteran testified that he had been recently treated by Dr. Schinco and by a Dr. Beatrice. Hearing transcript, page 8. The RO last obtained treatment records from Dr. Schinco in September 2006. The appellant also alleges that he underwent right knee surgery in 1987. The AMC should obtain all records from Drs. Barry, Pietrus, and Dr. Beatrice pertaining to the claimant as well as all records from Dr. Schinco pertaining to the Veteran since September 2006 and all records pertaining to right knee surgery in 1987. Moreover, the AMC should also afford the appellant another opportunity to identify any treatment for his right knee and cervical spine disabilities. An October 2004 response from the Social Security Administration shows that the Veteran was not receiving any Social Security disability benefits at that time. Although the appellant has been on various government assistance programs, he testified at the hearing that he was not entitled to Social Security disability benefits. Hearing transcript, page 8. Nevertheless, given the Veteran's history of government assistance and the length of time since the Board hearing, on Remand, the AMC should ask the claimant whether he has ever applied for Social Security disability benefits, and if he has the AMC should obtain any records from the Social Security Administration pertaining to his claim. In a February 2008 VA Form 9, the Veteran suggested that Dr. Wolohan related his right knee disability to injuries in active service. However, the records from Dr. Wolohan do not contain a medical nexus opinion. In the April 2009 statement, the representative claimed that Dr. K. from the Saginaw VA Medical Center, who according to the representative performed the Veteran's knee surgery, "without any hesitation, stated" that the right knee disability was related to active service. April 2009 statement of the representative, page 2. In contrast, at the hearing, the appellant testified that none of his doctors could definitively say one way or the other whether his right knee and cervical spine disabilities were related to injuries in service. The AMC should inform the claimant that he may submit a medical opinion from a medical professional, such as Dr. Wolohan, relating his right knee or cervical spine disability to injuries in active service, and to identify any VA medical professional who has related to his right knee or cervical spine disability to injuries in active service. In an August 2013 statement, the Veteran referenced an article titled Human Osteology: A Laboratory and Field Manual of the Human Skeleton and written by William M. Bass, Ph.D. in 1971 in support of his claim of entitlement to service connection for a cervical spine disability. He did not submit this medical treatise evidence and should be afforded the opportunity to submit it. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all treatment for his right knee and cervical spine disabilities, to include where the right knee surgery was done in 1987 and who performed the surgery, and whether he underwent knee surgery at the Saginaw VA Medical Center and if so when. With any assistance required from the Veteran, obtain any identified records to include all records from Drs. Barry, Pietrus, and Beatrice pertaining to the claimant as well as all records from Dr. Schinco pertaining to the Veteran since September 2006. Regardless of the appellant's response, obtain all records from the Saginaw VA Medical Center since March 2006 and if applicable any identified records regarding knee surgery at that facility. 2. Inform the Veteran that he may submit a medical opinion from a medical professional, such as Dr. Wolohan, relating his right knee or cervical spine disability to injuries in active service, and he may identify any VA medical professional who has related his right knee or cervical spine disability to injuries in active service. If the appellant identifies a specific VA medical professional who has related his right knee or cervical spine disability to injuries in active service, the AMC should make reasonable efforts to contact that medical professional if he or she is still employed by the VA and determine whether he or she has in fact related the appellant's right knee or cervical spine disability to injuries in active service 3. Inform the Veteran that he may submit article titled Human Osteology: A Laboratory and Field Manual of the Human Skeleton and written by William M. Bass, Ph.D. in 1971 in support of his claim of entitlement to service connection for a cervical spine disability. 4. Ask the Veteran whether he has ever applied for Social Security disability benefits and if he has, contact the Social Security Administration and obtain all records pertaining to his claim for disability benefits. 5. Thereafter, schedule the Veteran for a VA examination to determine the nature and extent of his right knee and cervical spine disabilities. The claims folder is to be made available to the examiner to review. The examiner is to provide a detailed review of the appellant's pertinent medical history, current complaints, and the nature and extent of any disability due to right knee and cervical spine disabilities. In particular, the examiner is asked to respond to the following inquiries: (A) Right knee: Accepting the Veteran's reporting of right knee injuries in June 1979, in 1982, and from falling out of a tree in 1987 as credible, is it at least as likely as not (50 percent or greater) that the Veteran's right knee disability is related to his military service, to include right knee treatment in service in April 1978, the motor vehicle accident in June 1979, an injury in 1982, and/or falling out of a tree in 1987? Is it at least as likely as not (50 percent or greater) that the Veteran's right knee scarring is consistent with a laceration related to any in-service injury? Cervical spine: Accepting the Veteran's reporting of cervical spine injuries in June 1979 and 1985, from wearing Kevlar helmets in service, and from falling out of a tree in 1987 as credible, is it at least as likely as not (50 percent or greater) that the Veteran's cervical spine disability is related to his military service, to include the motor vehicle accident in June 1979, an accident in 1985 while riding in a fire direction center vehicle, falling out of a tree in 1987, and wearing heavy Kevlar helmets during National Guard service? A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 6. Thereafter, the AMC must readjudicate the issues on appeal. If any benefit is not granted, the Veteran should be furnished with a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). 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). _________________________________________________ DAVID L. WIGHT 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).