Citation Nr: 1337406 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 07-25 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), and as secondary to a service-connected left foot disorder. 2. Entitlement to service connection for a bilateral knee disorder, to include as secondary to a service-connected left foot disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and spouse ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran had active service from June 1971 to June 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from April and September 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In July 2010, the Veteran and his spouse testified before the undersigned Veterans Law Judge at a hearing conducted at the Board's offices in Washington, D.C. A copy of the hearing transcript has been associated with the claims file. The Veteran waived initial RO consideration of private medical evidence that he submitted at the hearing. In a December 2010 decision, the Board denied the Veteran's claim for service connection for an acquired psychiatric disorder. In the same document, the Board also remanded the Veteran's claims for service connection for a bilateral knee disorder and an additional claim for an increased rating for a service-connected left foot disorder to the Appeals Management Center (AMC) for development. Subsequently, the AMC recertified those issues to the Board. The Veteran appealed the portion of the December 2010 Board decision denying his claim for service connection for a psychiatric disorder to the United States Court of Appeals for Veterans Claims (Court). In an April 2012 memorandum decision, the Court vacated the portion of the Board decision that denied service connection for an acquired psychiatric disorder and remanded the matter to the Board for action consistent with its decision. In a January 2013 decision, the Board denied the Veteran's claim for an increased rating for a left foot disability. As the record contains no indication that the Veteran appealed the issue of an increased rating for a left foot disability to the Court, that issue is no longer in appellate status and is not before the Board. In the same document, the Board remanded the Veteran's remaining claims for service connection for a psychiatric disorder and a bilateral knee disorder to the AMC for development. After development, the AMC recertified those issues to the Board. 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 In its January 2013 Remand, the Board noted that the Veteran alleged that he had PTSD related to an in-service incident during which an aircraft's propeller engine caught fire mid-flight while the Veteran was aboard. In its Remand instructions, the Board requested that the AMC advise the Veteran that he could submit further information that would allow for substantiation of this claimed PTSD stressor. If the Veteran subsequently provided this information, the Board requested that the AMC contact the United States Marine Corps and inquire about documentation in their possession that might corroborate this stressor. In compliance with the Board's Remand requests, the AMC provided a notice letter to the Veteran, advising him of his right to submit further information regarding his claimed stressor. In March 2013, the Veteran submitted a VA form, specifically a "stressor statement," regarding this incident. On the spaces on this form asking for the date and location of the incident, the Veteran wrote "06/1972" and "Marine Corps Air Station El Toro, California." However, in spaces on this form asking for the names of service personnel injured during the incident and the date of their injuries, the Veteran wrote his own name and "12/1972." The record indicates that the AMC subsequently submitted a written request to the U.S. Marine Corps Archives and Special Collection for corroborating documentation. In this letter, the AMC stated that the incident occurred in December 1972. After the service department indicated that documents regarding this incident would be stored at the National Archives and Records Administration (NARA), the AMC contacted NARA in writing, requesting the same records. In this letter, the AMC again stated that the incident occurred in December 1972. In a September 2013 response letter, the NARA stated that the command chronologies made no mention of the incident as described by the AMC. As noted above, even though the Veteran claimed to have experienced onset of injuries from this incident in December 1972, the Veteran stated that the incident itself occurred in June 1972. The AMC's search for records was inadequate and another search for corroborating documentation should be made using the date of the incident provided by the Veteran. The Veteran also claims that he experiences a bilateral knee disorder that was either caused of aggravated by a service-connected left foot disorder. In a March 2011 VA medical examination report, provided to determine the etiology of the bilateral knee disorder, a VA examiner noted that the Veteran's gait was normal. After a review of the evidence, the March 2011 VA examiner opined that the Veteran's bilateral knee disorder was less likely than not caused by the Veteran's service-connected left foot disability. In its January 2013 Remand, the Board noted that the March 2011 VA examiner failed to provide an opinion regarding whether the Veteran's claimed bilateral knee disorder was aggravated by the Veteran's service-connected left foot disability. The Board requested the AMC return the claims file to the March 2011 VA examiner to review it and provide the required opinion. The AMC obtained a May 2013 medical opinion from the March 2013 examiner. The examiner reported that he reviewed the claims file, and opined that the Veteran's bilateral knee disorder was less likely than not aggravated by the Veteran's service-connected left foot disability. The examiner observed that the service-connected left foot disability did not affect the Veteran's weight distribution while walking. However, in a May 2013 VA medical examination report regarding the severity of the Veteran's left foot disability, written two days prior to the date of the May 2013 VA medical opinion, a different VA examiner found that the Veteran had a "limited" gait due to "foot and knee conditions." The findings appear to contradict the findings upon which the March 2011 VA examiner based the May 2013 VA medical opinion. The file should be returned to the March 2011 VA examiner for the provision of an addendum to the May 2013 VA medical opinion, asking the examiner to clarify the opinion in light of the contradictory evidence. Accordingly, the case is REMANDED for the following action: 1. Contact the NARA and if necessary, all other appropriate alternative sources and any locations either submitted by the Veteran or identified within the Veteran's service personnel records, requesting any documents regarding the claimed stressor incident involving an aircraft whose propeller engine caught fire in June 1972 at the Marine Air Corps Base in El Toro, California. All attempts to secure these documents must be documented in the claims file. If no documents are found, the Veteran must be notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain an addendum to the May 2013 VA medical opinion from either the author of the March 2011 VA medical examination report or another qualified clinician. The purpose of the addendum is to assist VA in determining whether the Veteran's diagnosed bilateral knee disorder was caused or aggravated by his service-connected left foot disability. If the examiner determines that an additional VA medical examination should be provided, arrangements should be made to provide the examination. The following considerations will govern the addendum or examination report: a) The claims folder and a copy of this remand must be made available to the clinician for review, and the clinician must specifically acknowledge receipt and review of these materials in any reports generated. b) The clinician's attention IS CALLED to the following: i) The March 2011 VA medical examination report regarding the etiology of the Veteran's claimed bilateral knee disorder; ii) The May 2013 VA medical examination report regarding the severity of the Veteran's left foot disability, to include the notations regarding the Veteran's gait therein; iii) The May 2013 VA medical opinion regarding the etiology of the Veteran's claimed bilateral knee disorder. c) The clinician must provide an opinion as to whether the Veteran's bilateral knee disorder was caused or aggravated by his service-connected left foot disability. d) The clinician must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. e) If the clinician is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his attorney should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise 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). 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. 2012). _________________________________________________ VITO A. CLEMENTI 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).