Citation Nr: 1336837 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 08-32 095 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a right knee disability, to include as due to undiagnosed illness. 2. Entitlement to an initial evaluation in excess of 30 percent for obstructive lung disease, status post right lower lobectomy with scar and history of pneumonia. 3. Entitlement to an initial evaluation in excess of 10 percent for cervical strain, status post removal of benign dumbbell schwannoma with scar. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1984 to March 2006. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In July 2010, the Board remanded the claims for additional development. The case has since been returned to the Board for further appellate consideration. A review of the Veteran's electronic claims files in Virtual VA and Veterans Benefits Management System (VBMS) is significant for additional information and evidence relevant to the claims on appeal. Virtual VA contains an August 2013 notification letter indicating that the Veteran was placed on a list of persons waiting to appear for a Travel Board hearing for unspecified claims. Veterans Appeals Control and Locator System (VACOLS) shows that the letter was mailed in response to the Veteran's submission of a substantive appeal pertaining to issues that have yet to be certified to the Board for appellate consideration. There is no indication in the electronic or paper claims files that the Veteran has requested or desires a Board hearing pertaining to the issues currently before the Board for appellate consideration. His VA Form 9, certification of appeal, and a certification worksheet pertaining to the issues on appeal each state that a Board hearing is not requested on these matters. Moreover, an October 2013 appellate brief pertaining to the issues currently before the Board for consideration makes no mention of any desire of the Veteran to appear before the Board for a hearing. Thus, as there is no outstanding hearing request with respect to the matters presently on appeal, the Board will proceed with consideration of the claims. 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 has claimed entitlement to service connection for a right knee disability and entitlement to increased ratings for obstructive lung disease currently evaluated as 30 percent disabling and a cervical strain currently evaluated as 10 percent disabling. He contends these disabilities are more severe than reflected by the December 2006 QTC examination report. He also claims to have a current disability of the right patella related to strenuous physical activity during his 22 years of active service. A March 2008 VA treatment record suggests that the Veteran has received VA treatment at the Las Vegas VAMC. A review of the claims file shows that requests for outstanding and ongoing VA treatment records are necessary. A March 2007 VA treatment note shows that the Veteran indicated that he had a private physician with whom he planned to continue a relationship with. His established problems at that time included back and knee pain. As these records may be relevant to the claims on appeal, development efforts are necessary to obtain them. These claims were previously remanded by the Board in July 2010, in part, for obtainment of new VA examinations to determine the current nature and severity of the Veteran's service-connected cervical spine and obstructive pulmonary disease disabilities. Spine and pulmonary QTC examinations were scheduled for September 2010, however, a CAPRI printout in the paper claims file shows that the examinations were cancelled on August 17, 2010, prior to when they were scheduled to occur, due to the Veteran's "failure to report." An August 2010 report of information in Virtual VA and an October 2010 RO note in VBMS show that the Veteran requested that such examinations be rescheduled. The RO note in VBMS indicates that the request to reschedule the examinations was received and an appointment was to be scheduled, however, there is no indication that such examinations were ever rescheduled. The Veteran's representative requested that the case be remanded to afford the Veteran new VA examinations to determine the nature and severity of his service-connected lung and cervical spine disabilities as there is evidence that such disabilities may have worsened since they were most recently examined in December 2006. VA treatment records currently associated with the claims file show that the Veteran underwent a VA Gulf War examination in June 2011, which included examination of his cervical spine and obstructive lung disease disabilities. However, the examination pertaining to such disabilities is inadequate for rating purposes. The examiner did not address whether there is additional functional limitation of the cervical spine due to factors such as pain, weakness, fatigability, and incoordination and there is no indication that a pulmonary function test was performed for evaluation of the Veteran's chronic obstructive lung disease. In light of the foregoing, a remand is necessary to afford the Veteran VA examinations to determine the current nature and severity of his service-connected cervical strain and obstructive lung disease disabilities. As to the Veteran's claimed right knee disability, the RO denied service connection due to lack of evidence of a current right knee disability. In this regard, the Veteran's service treatment records show treatment for complaints of right knee pain, most recently in September 2005. November and December 2003 service treatment records attributed right knee pain to a tight right hamstring. On QTC examination in December 2006, there was no right knee pathology on clinical or x-ray examination from which to diagnose a current right knee disability. VA treatment records dating from March 2007 to October 2011 merely show notation of an "established problem" of right knee pain on establishing care at the Fayetteville VAMC in March 2007. Nevertheless, the Veteran's DD Form 214 shows that he is in receipt of a Southwest Asia Service Medal and Kuwait Liberation Medals pertaining to service in Kuwait and Saudi Arabia. Thus, service connection for a chronic right knee disability resulting from undiagnosed illness must be considered in this case. 38 C.F.R. § 3.317. This theory of entitlement has been considered by the RO or the December 2006 QTC examiner. Thus, the Veteran must be afforded an adequate examination of his right knee with consideration of 38 C.F.R. § 3.317. Moreover, obtainment of any outstanding and ongoing treatment records as directed herein may establish the presence of a current right knee disability. Thus, the claim must also be considered in the context of any new and outstanding treatment records dated during the pendency of the claim. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran corrective VCAA notice concerning the information and evidence necessary to establish a claim for service connection for chronic right knee disability resulting from an undiagnosed illness under 38 C.F.R. § 3.317. 2. Contact the Veteran and request that he identify any private treatment received for his obstructive lung disease, cervical strain, and claimed right knee disabilities dating since his discharge from military service, to include any records from an unidentified private physician alluded to by the Veteran in a March 2, 2007, VA treatment note. Take appropriate steps to secure authorization necessary to obtain copies of any identified treatment records that are not currently of record. Regardless of the Veteran's response, VA treatment records, if any, must be obtained from the Las Vegas VAMC dating since March 2006 and the Fayetteville VAMC/Fort Smith CBOC dating since October 2011. All reasonable attempts should be made to obtain identified records. If any records cannot be obtained, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, and associate it with the claims file. All attempts to obtain records must be documented in the claims file. If any identified records cannot be obtained for any reason, the Veteran and his representative must be notified and allowed reasonable time to submit those records for review. 3. After obtaining all outstanding records, schedule the Veteran for a VA examination with an orthopedic specialist to determine the current nature and severity of his cervical strain disability and for a medical opinion as to whether the Veteran has a current right knee disability related to active service. The Veteran's paper and electronic claims folders should be made available to and reviewed by the examiner in conjunction with the examination and the examiner should document that this review occurred in the report of examination. Any tests or studies deemed necessary should be conducted. The examiner should list the range of motion of the Veteran's cervical spine and right knee in all pertinent directions. After reviewing the claims folders, obtaining a history of cervical spine and right knee complaints from the Veteran, and conducting a thorough examination, the examiner should respond to each of the following inquiries: a. Does the cervical spine and right knee exhibit weakened movement, excess fatigability, incoordination, or pain on use attributable to the service-connected disability (if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to these symptoms)? b. Does pain significantly limit functional ability during flare-ups or when the cervical spine and right knee is used repeatedly over a period of time (these determinations should also, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups)? c. Identify any neurological findings related to the service-connected cervical spine disability and fully describe the extent and severity of those symptoms. If such disability is found, the examiner should identify the exact nerves affected and describe the severity of disability, including any paralysis. d. Note the size and area of any scars associated with the cervical spine disability, and note whether such are superficial or deep, painful on examination, or cause any limitation of motion. e. Identify each right knee disability found on examination. As to each right knee disability identified, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such disability arose during service or are otherwise related to any incident of service, including treatment for right knee pain during service and strenuous physical activity therein. If the examiner finds no clinical diagnosis of a right knee disability on examination that was incurred in, caused by, or otherwise related to the Veteran's active military service, he/she should provide an opinion as to whether the Veteran exhibits objective indications of a chronic right knee disability due to an undiagnosed illness as defined under 38 C.F.R. § 3.317. For purposes of 38 C.F.R. § 3.317 "objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. The examiner should provide a rationale for the conclusions reached. 4. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his service-connected obstructive lung disease. The electronic and paper claims files should be provided to the examiner for review and the examiner should note that they have been reviewed. The examiner should not the Veteran's symptoms and complaints associated with this disability. All necessary tests and studies are to be performed, including pulmonary function tests. It is essential that the pulmonary function study contains the full range of results necessary to rate the disability under the diagnostic criteria (FEV-1, FEV-1/FVC, maximum exercise capacity as measured by oxygen consumption (in ml/kg/min)). The examiner should also determine whether the Veteran has (a) cor pulmonae; (b) right ventricular hypertrophy; (c) pulmonary hypertension (shown by Echo or cardiac catheterization); (d) episodes of acute respiratory failure; or (e) requires outpatient oxygen therapy. Also note the size and area of any scars associated with this disability, and whether such are superficial or deep, painful on examination, or cause any limitation of motion. All opinions expressed must be supported by a complete rationale. 5. Review the examination reports to ensure that they are in complete compliance with the directives of this REMAND. If the reports are deficient in any manner, the implement corrective procedures. 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken herein, readjudicate the Veteran's claims, to include consideration of 38 C.F.R. § 3.317 with respect to service connection for a right knee disability. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. 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). _________________________________________________ MICHAEL LANE 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).