Citation Nr: 1506105 Decision Date: 02/10/15 Archive Date: 02/18/15 DOCKET NO. 12-33 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a back disorder, to include as due to undiagnosed illness. 2. Entitlement to service connection for a right knee disorder, to include as due to undiagnosed illness. 3. Entitlement to service connection for a left knee disorder, to include as due to undiagnosed illness. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from February 2001 to October 2004. This appeal to the Board of Veterans' Appeals (Board) is from December 2009 and December 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2014, the Veteran testified before the undersigned during a Travel Board hearing; a transcript of this hearing is stored electronically in Virtual VA (VVA). Pertinent records may also be found in VVA and VBMS. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran's claims for service connection are premised on two theories: first, that the Veteran regularly carried approximately half his body weight during service that led to the claimed disabilities; and, second, that his complaints of back and knee pain are part of undiagnosed illnesses associated with his Persian Gulf service. See hearing transcript pages 4, 5 and 15. The Veteran was afforded VA examinations in 2011 and 2013 and opinions were obtained, but these are insufficient since they did not address the possibility of an undiagnosed illness or take into consideration the Veteran's reports of ongoing upper back and knee pain since service. In light of these deficiencies, he should be afforded additional examinations. The Veteran has indicated that he only received medical treatment or evaluations through VA. During his hearing, he identified VA records in Buffalo and Seattle; however, the only treatment records associated with his claims file are from Rochester, Syracuse, Canandaigua, and Portland. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file copies of the Veteran's complete treatment records from VA Medical Centers (VAMCs) in Buffalo and Seattle. All records from the Portland VAMC dated since June 2013 should also be obtained. 2. Then, arrange for appropriate VA examination(s) to address the likely etiology of the claimed bilateral knee and back disabilities. The claims file, to include all records stored electronically in VVA and VBMS, must be made available to the examiner(s). A notation to the effect that this record review took place should be included in the reports. All indicated tests and studies are to be performed. Obtain a complete medical history from the Veteran regarding the claimed back and bilateral knee disabilities Following a comprehensive examination, the examiners should: a) Note all symptoms and diagnoses associated with the Veteran's back and bilateral knee complaints. b) Opine whether any currently diagnosed disorder of the back and/or knees at least as likely as not (50 percent or greater probability) had its clinical onset during active service, or is related to any in-service disease, event, or injury. The examiner is advised the Veteran was diagnosed with bilateral knee strain on a previous examination, so this diagnosis must also be specifically addressed. c) If a back or knee disability is not found to be due to a specific disease entity or clinically diagnosed condition, indicate whether the symptoms represent an objective indication of a chronic disability resulting from an undiagnosed illness. d) All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. e) In rendering opinions and rationales, the examiner must consider the lay statements and the Veteran's complaints of symptoms in service and after service as he is competent to report his symptoms, and take into account the following: * During service in April 2002, the Veteran complained of upper back pain that had progressively worsened for 1 year. He denied any direct trauma. The impression was numerous trigger points in the right shoulder. * During service in May 2002, the Veteran complained of upper back pain. He reported that his job in the motor pool involved lifting for 10 hours, twisting of the back while lifting, lifting overhead for 3 hours, and pushing and pulling for 3 hours. The diagnosis was paraspinal muscle strain. * During service in September 2003, the Veteran reporting having upper back pain for 1 1/2 days that started while he was walking. The pain radiated to the low back when he had a load on his back and it was constant during load bearing. * During service in July 2004, the Veteran reported having a 1 year history of bilateral knee pain. He reported that they only hurt when he was stationary, not when he was active. The assessment was knee pain. * The Veteran's in-service duties that required that he carry 60 to 80 pound packs (when he only weighed approximately 135 pounds). 3. Next, review the claims file and ensure that the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If the examination reports do not include adequate responses to the specific opinions requested, they must be returned to the providing examiners for corrective action. 4. Finally, after completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with an SSOC and afford them the appropriate time period for a response before the claims file is returned to the Board for further appellate consideration. 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 2014). _________________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).