Citation Nr: 1334832 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-17 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for bilateral shin splints. 2. Entitlement to service connection for bilateral heel spurs (claimed as foot problems). 3. Entitlement to service connection for a bilateral knee condition. 4. Entitlement to service connection for a bilateral leg condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty (AD) from January to April 1981. He also served in the Army National Guard from February 1983 to April 1985, so presumably had additional service on active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). He appealed to the Board of Veterans' Appeals (Board/BVA) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The RO in Cleveland, Ohio, however, certified his appeal to the Board. In his April 2010 substantive appeal (on VA Form 9), he appeared to limit his appeal to just swelling of his leg. But the Supplemental Statement of the Case (SSOC) since issued in January 2011 continued to address all four claims. Therefore, the Board will also liberally construe the VA Form 9 in compliance with 38 C.F.R. § 20.202, etc., and resultantly consider the appeal of all four claims as having been timely perfected. Also on that VA Form 9, the Veteran requested a hearing before a Veterans Law Judge (VLJ) of the Board at the Board's offices in Washington, DC, so a Central Office (CO) hearing. However, a request for a hearing may be withdrawn by an appellant at any time before the date of the hearing. 38 C.F.R. § 20.702(e) (2013). And, here, he withdrew his request for this hearing in May 2010, allowing the Board to proceed with its consideration of his appeal. Id. His claims require further development before being decided on appeal, however, so the Board is remanding them to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND A remand is necessary in this case so that VA may satisfy its duty to assist the Veteran in obtaining evidence necessary to substantiate these claims. See 38 U.S.C.A. § 5107A (West 2002); 38 C.F.R. § 3.159(c)(2013). He has identified potentially relevant records that are not in his claims file, either his physical claims file or even the electronic ("Virtual VA") portion of it. Efforts to obtain records from a Federal department or agency must continue until the records are obtained unless it is reasonably certain they do not exist or that further efforts to obtain them would be futile. 38 U.S.C.A. § 5103A(c)(2) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c)(2)(2013). Furthermore, VA treatment records are considered constructively of record even if not physically in the claims file. See Bell v. Derwinski, 2 Vet. App. 611, 612 (1992); Dunn v. West, 11 Vet. App. 462, 466-67 (1998). A September 2010 treatment record from the Lexington VA Medical Center (VAMC) mentions the Veteran previously had received treatment at the Louisville VAMC. He identified orthopedic problems among his then current medical conditions and indicated that he planned on receiving future care in Shelby County. Efforts therefore must be made to obtain all records of his relevant treatment at the Louisville VAMC and any other facilities. Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Obtain all outstanding treatment records, including especially treatment records from the Louisville VAMC, and associate these additional records with the claims file. All efforts to obtain these records must be documented in the claims file, and if they are ultimately deemed unobtainable, the appropriate memorandum for the file must be prepared and the Veteran appropriately notified. 38 C.F.R. § 3.159(c)(2) and (e)(1). 2. If additional VA or other records are obtained, consider whether they warrant providing the Veteran a VA compensation examination for a medical nexus opinion regarding the etiologies of his claimed conditions, particularly in terms of whether they are related or attributable to his military service as he is alleging. In disability compensation (service-connection) claims, VA must provide a medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or a service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). The Court has stated that the third element of McLendon establishes a low threshold and requires only that the evidence "indicates" there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus, but is too equivocal or lacking in specificity to support a decision on the merits; or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. Id. See also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (When determining whether a VA examination and opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggest an association between the disability and service or a service-connected disability.) If an examination is deemed warranted, schedule it. The designated examiner is asked to provide a medical nexus opinion indicating the likelihood (very likely, as likely as not, or unlikely) any of these claimed disabilities - if confirmed to be present either now or at some point since the filing of these claims - began during the Veteran's service, or if, as an example, involving arthritis, within one year of his discharge, or are otherwise related or attributable to his service. The relevant medical and other records should be made available to the examiner for review in conjunction with the examination, and the examination report must reflect that such review was accomplished. All necessary diagnostic testing and evaluation should be performed and the findings reported in detail. Where appropriate, the examiner must specifically address the February 1981 entry in the Veteran's service treatment records (STRs) showing he received treatment for shin pain as well as leg and knee pain. It is most essential, however, the examiner discuss the underlying rationale of the opinion - if necessary citing to specific evidence in the file supporting conclusions. If an opinion cannot be rendered without resorting to mere speculation, the VA examiner discuss explain why it would be speculative to respond. 3. Then readjudicate these claims in light of this and all other additional evidence. If they continue to be denied, send the Veteran another SSOC and give him opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. He has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2013). _________________________________________________ Keith W. Allen 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) (2013).