Citation Nr: 1334879 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 12-33 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a right knee disorder to include osteoarthritis. 2. Entitlement to service connection for a left knee disorder to include osteoarthritis. 3. Entitlement to service connection for a heart disorder to include ischemic heart disease claimed as the result of exposure to Agent Orange. REPRESENTATION Appellant represented by: Penelope E. Gronbeck, Attorney ATTORNEY FOR THE BOARD E. Blowers, Associate Counsel INTRODUCTION The Veteran is the appellant in the instant appeal. He had active service from June 1962 to August 1966. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Louisville, Kentucky, Regional Office (RO) which denied service connection for bilateral knee osteoarthritis. In October 2012, the RO denied service connection for ischemic heart disease claimed as the result of exposure to Agent Orange. In July 2013, the Veteran's attorney submitted a notice of disagreement (NOD) with that decision. The Board has reviewed the physical claims file and both the Veterans Benefits Management System (VBMS) and "Virtual VA" files so as to insure a total review of the evidence. The Board has reframed the issues in accordance with the United States Court of Appeals for Veterans Claims' (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). The appeal is REMANDED to the RO. The Department of Veterans Affairs (VA) will notify the Veteran if further action is required. REMAND The Veteran asserts that service connection is warranted for right knee and left knee arthritis secondary to his service-connected right ankle and left ankle disorders and associated altered gait. A September 2003 VA treatment record notes that the Veteran received right knee surgery on or about 1997-1998, and left knee surgery on or about 1983. In his August 2010 claim, the Veteran conveyed that he was receiving ongoing treatment from the Murfreesboro, Tennessee VA Medical Center (VAMC) for his knee disabilities. In his November 2012 appeal to the Board, the Veteran asserted that his right knee went out within the first year of discharge from service and necessitated a surgical procedure by a Dr. Olson. He further stated that a Dr. Beard performed a surgery on his left knee. Clinical documentation of the cited VA and private treatment is not of record. VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The report of an October 2010 VA joint examination conveys that the Veteran was diagnosed with bilateral knee osteoarthritis. The examiner opined that it was less likely than not that the Veteran's "current bilateral knee condition is related to his service connected bilateral ankle arthritis. . . . to my knowledge, there is no known relationship between ankle arthritis and the subsequent development of knee arthritis in the medical literature." The examiner did not address the relationship, if any, between the Veteran's altered gait and the onset of his knee osteoarthritis or whether the knee disabilities had increased in severity beyond their natural progression secondary to his service-connected ankle disorders. The Board finds that further VA orthopedic evaluation is necessary in resolving the issues. A July 2009 VA medical record conveys that the Veteran was receiving Social Security Administration (SSA) disability benefits. Documentation of the Veteran's SSA award and the evidence considered in granting the Veteran's claim is not of record. The Court has clarified that VA's duty to assist the Veteran includes an obligation to obtain records from the SSA. Masors v. Derwinski, 2 Vet. App. 181, 187-188 (1992). In October 2012, the RO denied service connection for ischemic heart disease. In July 2013, the Veteran's attorney submitted a timely NOD with that decision. The Court has directed that, where a veteran has submitted a timely NOD with an adverse decision and the RO has not subsequently issued a statement of the case (SOC) addressing the issue, the Board should remand the issue to the RO for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to all post-service treatment of his right knee and left knee disorders, including Drs. Olson and Beard and the names and addresses of any other health care providers. Upon receipt of the requested information and the appropriate releases, the RO should contact Dr. Olson, Dr. Beard, and all other identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record any VA clinical documentation pertaining to the treatment of the Veteran's knees, not already of record, including that provided at the Murfreesboro, Tennessee VAMC. 3. Contact the SSA and request that it provide documentation of the Veteran's award of disability benefits and copies of all records developed in association with the Veteran's award of disability benefits for incorporation into the record. 4. Then schedule the Veteran for a VA orthopedic examination for compensation purposes in order to determine the current nature and etiology of his right knee and left knee disorders. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should advance an opinion as to whether it is as likely than not (i.e., probability of 50 percent or more) that any identified knee disorder had its onset during active service; otherwise originated during active service; and/or is related to and/or increased in severity beyond its natural progression due to the Veteran's right ankle and/or left ankle disabilities. All relevant records, including those in the claims folder, should be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A clear rationale for all opinions and a discussion of the facts and medical principles involved should be provided. 5. After the requested examination has been completed, the examination report should be reviewed to ensure that it is in compliance with the directives of this Remand. The report should be returned to the examiner if it is deficient in any manner. 6. Then readjudicate the claims of service connection for left and right knee disorders. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered, since the issuance of the last SSOC. An appropriate period of time should be allowed for response before the case is returned to the Board. 7. Issue a SOC to the Veteran which addresses the issue of entitlement to service connection for a heart disorder to include ischemic heart disease claimed as the result of exposure to Agent Orange. The Veteran should be given the appropriate opportunity to respond to the SOC. The RO should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of the issue following the issuance of the Statement of the Case unless he perfects his appeal. 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). The claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).