Citation Nr: 1335392 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 12-10 867 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for right knee disability, to include as secondary to service-connected tibial periosteal reactions of both lower extremities. 2. Entitlement to service connection for left knee disability, to include as secondary to service-connected tibial periosteal reactions of both lower extremities. REPRESENTATION Appellant represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from August 1975 to July 1979. He also served on active duty in the U.S. Air Force for 19 days in July 1973. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2010 rating decision in which the RO denied service connection for disabilities of both knees. In November 2010, the Veteran filed a notice of disagreement (NOD). In December 2011, while the Veteran's NOD was pending, the RO issued a rating decision in which the RO, inter alia, granted service connection for tibial periosteal reactions of both lower extremities (claimed as shin splints). A statement of the case (SOC) was issued in February 2012, wherein the RO confirmed its prior denial of service connection for disabilities of the knees-to include as secondary to service-connected tibial periosteal reactions of the lower extremities-and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2012. The Board notes that, while the Veteran previously was represented by The American Legion, in December 2011, the Veteran granted a power-of-attorney in favor of James G. Fausone, Attorney, with regard to the claims on appeal. The Veteran's attorney has submitted written argument on his behalf. The Board recognizes the change in representation. The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. For the reasons expressed below, the matters on appeal are being remanded to the RO. VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, the Board notes that the RO, in its December 2011 rating decision (referenced above), assigned initial, noncompensable ratings for tibial periosteal reactions of the right and left lower extremities, and also denied a 10 percent rating based on multiple, noncompensable service-connected disabilities under the provisions of 38 C.F.R. § 3.324. The Veteran filed a NOD with respect to the December 2011 rating decision in November 2012, and an SOC was issued in June 2013. However, the record currently before the Board does not reflect that the Veteran has since perfected an appeal of these issues by filing a timely substantive appeal. As such, the Board has no present jurisdiction to consider them. See 38 C.F.R. § 20.302(b). REMAND The Board's review of the claims file reveals that further RO action on the claims on appeal is warranted. The Veteran and his representative have asserted that service connection for disabilities of the knees is warranted both on a direct basis and as secondary to service-connected tibial periosteal reactions of both lower extremities. They have advanced argument to the effect that the Veteran's current knee disabilities had their onset in service, as evidenced by multiple in-service treatment records reflecting complaints of bilateral lower extremity pain, injury to the left knee, findings of bilateral sub-patella crepitus, and diagnostic assessments that include chondromalacia (of the left knee). They also maintain that the Veteran's knee disabilities have been exacerbated, or worsened, as a result of an altered, painful gait brought on by the service-connected tibial periosteal reactions of both lower extremities. The Veteran underwent VA joints examinations in May 2010 and December 2010, for purposes of obtaining medical opinions with respect the likely etiology of his knee disabilities. The May 2010 examiner opined, in effect, that it was unlikely that the Veteran's currently shown knee disabilities were directly related to service. The December 2010 examiner opined, in effect, that it was unlikely that the service-connected tibial periosteal reactions of the Veteran's lower extremities were associated with the progressive arthritic deterioration of his knees. Significantly, however, in providing his opinion, the May 2010 examiner appears to have limited his analysis to the matter of whether a currently shown disability of the knees could be attributed to an injury to the left knee for which the Veteran was treated in April 1976. The examiner did not discuss why he found it unlikely that the currently shown knee disabilities (diagnosed as arthritis and chondromalacia) were unrelated to multiple in-service complaints of bilateral lower extremity pain, findings of bilateral sub-patella crepitus, and diagnostic assessments that include chondromalacia, as alleged by the Veteran. In addition, the December 2010 examiner did not address the Veteran's assertion that his knee disabilities have been exacerbated, or worsened, as a result of an altered, painful gait brought on by the service-connected tibial periosteal reactions of his lower extremities. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). For the reasons stated, the Board finds that the opinions currently of record are inadequate. As such, a new medical opinion-based on full review of the record and supported by stated rationale-is needed to fairly resolve the appellant's claims. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the RO should arrange for the Veteran to undergo VA orthopedic examination, by an appropriate physician, at a VA medical facility. The Veteran is hereby advised that failure to report for the scheduled examination, without good cause, may result in denial of his claims for service connection (inasmuch as the claims will be adjudicated based on the evidence of record). See 38 C.F.R. § 3.655 (2013). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report for the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record is complete, the RO should obtain and associate with the claims file all outstanding pertinent records. In statements submitted during the course of his appeal, the Veteran reported receiving in-service treatment for problems with his lower extremities at the U.S. Army Hospital in Wurzburg, Germany in the winter of 1978 or early spring of 1979. He further reported that he was thereafter placed on a medical profile. The RO has obtained the Veteran's service medical records, and they contain no reports of hospital care pertaining the Veteran's lower extremities during the winter or 1978 or early spring of 1979. However, historically, records of in-service hospital treatment were sometimes stored separately from other records. Because it is not clear that efforts have been exhausted to obtain the records to which the Veteran refers, additional development is required. See 38 U.S.C.A. § 5103A(b), (c) (West 2002); 38 C.F.R. § 3.159(c)(1)-(3) (2013). Accordingly, the RO should request through official sources the hospital records that correspond to the care the Veteran reportedly received. If additional information is required from the Veteran to request the records, such should be requested. His personnel records should also be procured, inasmuch as they could contain information pertaining to his reported medical profile and associated limitations, as they pertained to his performance of duties. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2013) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran provide, or provide appropriate authorization for it to obtain, any outstanding private medical records, including records of the left knee arthroscopy he reportedly underwent in Missouri in 2006 or 2007, the reported magnetic resonance imaging (MRI) of his right knee in March 2009, any relevant records from his primary care provider, Dr. Cruz, and records of any additional, relevant treatment the Veteran has received at Mississippi Orthopaedics and Sports Medicine since November 2009. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. As indicated, the RO's adjudication of the claims must include consideration of all pertinent evidence added to the claims file since the RO's last adjudication of the claims. Accordingly, these matters are hereby REMANDED to the RO for the following action: 1. Request from all appropriate source(s) a complete copy of the Veteran's service personnel records. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Request from all appropriate source(s) a complete copy of the records that correspond to the care the Veteran reportedly received for problems with his lower extremities at the U.S. Army Hospital in Wurzburg, Germany in the winter of 1978 or early spring of 1979. If additional information is required from the Veteran to request the records, he should be asked to provide the additional information. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization for the RO to obtain, any outstanding private medical records, including records of the left knee arthroscopy he reportedly underwent in Missouri in 2006 or 2007, the reported MRI of his right knee in March 2009, any relevant records from his primary care provider, Dr. Cruz, and records of any additional, relevant treatment the Veteran has received at Mississippi Orthopaedics and Sports Medicine since November 2009. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 4. If the Veteran responds, obtain all identified outstanding pertinent records of evaluation and/or treatment not currently of record-to include copies of records of the left knee arthroscopy he reportedly underwent in Missouri in 2006 or 2007, the reported MRI of his right knee in March 2009, any relevant records from his primary care provider, Dr. Cruz, and records of any additional, relevant treatment the Veteran has received at Mississippi Orthopaedics and Sports Medicine since November 2009-following the procedures set forth in 38 C.F.R. § 3.159 (2013). All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA diabetes mellitus examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND and printed paper copies of all evidence relevant to the examiner's review (if the examiner does not have access to the appellant's electronic (Virtual VA) file), must be made available to the physician designated to examine the appellant, and the report of examination should include discussion of the Veteran's documented history and assertions. All appropriate tests and studies (to include X-rays, if necessary) should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report) and all clinical findings should be reported in detail. The physician should clearly identify all current disability(ies) of the knees. Then, with respect to each such diagnosed disability, the physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability is the result of disease or injury incurred in or aggravated by service. In so doing, the physician should discuss the significance, if any, of the Veteran's complaints of lower extremity pain during service, to include in December 1975, January 1976, February 1976, April 1976, November 1976, and September 1978; the finding of bilateral sub-patella crepitus in February 1976; in-service diagnostic assessments of chondromalacia (of the left knee) in January 1976 and April 1976; and post-service findings of chondromalacia on arthroscopy of the right knee in September 2009. If the physician concludes that it is unlikely that one or more of the currently identified disabilities of the knees is the result of disease or injury incurred in or aggravated by service, the physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not any such disability was caused or is aggravated (i.e., permanently worsened beyond natural progression) by the service-connected tibial periosteal reactions of the Veteran's lower extremities. In so doing, the physician should specifically discuss the Veteran's assertion that his knee disabilities have been exacerbated, or worsened, as a result of an altered, painful gait brought on by the service-connected tibial periosteal reactions of his lower extremities. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 6. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file (a) copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should adjudicate the matters on appeal in light of all pertinent evidence and legal authority. 9. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental SOC (SSOC) that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The appellant need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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. 2013). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2013).