Citation Nr: 1537480 Decision Date: 09/02/15 Archive Date: 09/10/15 DOCKET NO. 13-31 324A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for scar of left knee, trauma. 2. Entitlement to service connection for multiple surgical scars, left knee. 3. Entitlement to service connection for arthritis left knee status post arthroscopy. 4. Entitlement to service connection for arthritis right knee status post arthroscopy. 5. Entitlement to service connection for a respiratory disorder. 6. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S.M. Kreitlow INTRODUCTION The Veteran had active military service from November 1974 to November 1977 and February 1982 to January 1986. Additionally, he served in the U.S. Army Reserve until December 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in November 2010 and June 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The Veteran appeared and testified at a Board hearing before the undersigned Veterans Law Judge in May 2015. A copy of the transcript of this hearing has been associated with the claims file. The issues of service connection for bilateral knee disorders, bronchial asthma and sleep apnea are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT At the Board hearing held in May 2015, prior to the promulgation of a decision in the appeal, the Veteran notified the Board that a withdrawal of the appeal related to claims for service connection for scars of the left knee (due to trauma and surgery) is requested. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran (or his or her authorized representative) have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, at the May 2015 Board hearing, the Veteran submitted his request that the claims for service connection for scars to his left knee (due to trauma and surgery) be withdrawn. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to those claims, and the appeal is dismissed as to that portion only. ORDER The appeal as it relates to the claims for service connection for scars to the left knee (due to trauma and surgery) is dismissed. REMAND The Board finds that remand of the remaining issues on appeal is warranted for additional development as follows. Initially the Board notes that the Veteran has both periods of active duty and periods of Reserve duty. The different types of duty have different elements that must be shown before service connection can be established. The appellant in this case is a "veteran" based on his active duty service from November 1974 to November 1977 and February 1982 to January 1986. Therefore, he is entitled to "veteran" status and the full benefit of VA resources for any compensation claims based on those periods of active duty. However, to the extent his claims are not based on a period of active duty, but on his Reserve service (i.e., a period of active duty for training or inactive duty for training), in order for him to achieve "veteran" status for his such service and be eligible for service connection for a disability claimed to have been incurred during such service, the record must establish by a preponderance of the evidence that he was disabled during active duty for training due to a disease or injury incurred or aggravated in the line of duty or he was disabled from an injury incurred or aggravated during inactive duty for training. See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). The term "veteran" means "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C.A. § 101(2). The term "service-connected" means that a disability was incurred or aggravated in the line of duty during active military, naval, or air service. 38 U.S.C.A. § 101(16); 38 C.F.R. § 3.1(k). Active military, naval, or air service includes (1) active duty; (2) any period of active duty for training during which the veteran was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty training during which the veteran was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Active duty for training includes full-time duty performed by members of the reserve. 38 C.F.R. § 3.6(c) (2005). Inactive duty for training includes duty (other than full-time duty) performed by a member of the reserve. 38 C.F.R. § 3.6(d) (2005). Therefore, an individual can be service-connected for an injury incurred during inactive service, but not for a disease. See VAOPGCPREC 86-90 (July 18, 1990); Brooks v. Brown, 5 Vet. App. 484, 485-486 (1993). Therefore, in order for the Veteran to be entitled to service connection for claims based on his reserve service, he has to show that he was disabled due to an injury or disease incurred or aggravated in the line of duty during a period of active duty for training or that he was disabled due to an injury incurred or aggravated in the line of duty during a period of inactive duty for training. With regard to the claim for service connection for a respiratory disorder, the Veteran has stated that this condition manifested in 1989, but service records do not show he was not on active duty in 1989 or thereafter; rather, they show he only served for periods of active duty for training and inactive duty for training while serving with the Army Reserve. The Veteran relates the cause of his asthma, however, to exposure to hazardous environmental materials, specifically mold, during both his active duty service and his reserve service. In addition, at the Board hearing, the Veteran's representative elicited testimony that the Veteran had a history of hay fever during service and that this progressed to asthma and sleep apnea. Service examination reports from October 1974 through June 1990 show the Veteran acknowledged a history of hay fever but denied a history of asthma, shortness of breath, pain or pressure in chest and chronic cough. No actual findings of any respiratory disorder were made. The first note in the service treatment records relating that the Veteran had asthma is from May 1992. The first post-service medical evidence of treatment for asthma currently in the claims file is from 2005, although the Veteran has stated he has been treating with this private physician since 1991. Thus, on remand, the type of duty the Veteran was on when the injury, disease or event was incurred must be considered in determining whether service connection is warranted for this claim. With regard to the Veteran's bilateral knee disorders, the Veteran has stated that he sustained injuries to his knees during his first period of active duty from November 1974 to November 1977. As stated above, the Veteran has also alleged he was exposed to environmental hazards, specifically mold, during this period of active duty from his housing situation. Furthermore, he has alleged that he had problems sleeping since this first period of active duty and also feels that it could be related to stress, including the stress of waking up at early hours and of performing his duties. Although he has not stated that he has treatment for either a respiratory problem or sleep apnea during this period of active duty, there still may be evidence of these problems he is now reporting. The service treatment records for this period, however, are not associated with the claims file. The Board finds that further action should be taken to locate the Veteran's service treatment records from his period of active duty from November 1974 to November 1977. The claims file contains a VA Record Center and Vault (RC&V) Reference Request Pull Slip that indicates that records were found and two files were shipped to the RO. This document is stamped as having been received by the RO on October 30, 2009. However, it appears from subsequent correspondence again seeking these service treatment records that these records never made it into the claims file. It is unclear as to what efforts were undertaken to locate these records within the RO rather than at the Records Management Center or other repository of service records. It is also unclear whether the Veteran's service treatment records from November 1974 to November 1977 are not still located within the RO somewhere. Thus, remand is warranted for the RO to search its facility for these missing service records. If they are not found, a memorandum of unavailability of records should be made setting forth in detail the efforts undertaken to locate these missing records. The Board notes that this does not include the service records from 1977 to 1994 relating to the Veteran's Army Reserve service as those are associated with the claims file. At the hearing, the Veteran's representative stated that there were five pages of records that are faded and cannot be read but he thought he saw one with a date of 1974 on it. He suggested trying to have those records scanned again in hopes of getting a better copy. The Board finds that additional action is not required. The records identified by the representative were located and are significantly illegible except that they clearly indicate they are from 1979 rather than 1974. These records are marked "BEST COPY." Thus, the Board finds that it is reasonable to assume that the paper documents that was scanned into the virtual claims file were just as illegible as the scan itself, and further efforts to obtain a new scan would be fruitless. In a statement submitted with his November 2013 VA Form 9, the Veteran related that, in the summer of 1976, he suffered an injury to his knee while temporarily deployed to Fort Campbell, Kentucky. He stated that he lost his balance while coming off a moving train twisting his knee and was taken to the hospital and treated for a serious sprain. At the Board hearing, the Veteran testified this injury was incurred in the summer of 1975 and that he was put in a cast and on crutches. On remand, the Veteran should be asked to clarify the timeframe in which this injury occurred and efforts should be undertaken to obtain these hospital records, if any. The Board further finds that additional efforts should be made to obtain supplementary private treatment records. In his November 2010 Notice of Disagreement, the Veteran stated that the reason why his physician who treats his asthma only gave paperwork dating back to 2005 was because the file was so large that the practice thought the past few years would be enough. He stated that he is prepared to ask them for everything they have regarding this treatment since 1991. Since evidence showing the onset and continuity of the Veteran's asthma is relevant to his claim for service connection, these records should be sought on remand. At the May 2015 hearing, the Veteran's representative set forth argument that the Veteran's bilateral knee problems caused him to gain weight because of the inability to exercise and that this contributed to his diagnosed hay fever and asthma. The Board interprets this argument as one for secondary service connection for the Veteran's asthma as it is proximately due to, the result of or aggravated by his bilateral knee disorders. This theory of entitlement had not previously been presented. On remand, appropriate notice on establishing secondary service connection should be provided the Veteran and any appropriate development should be conducted, to include a VA examination with a medical opinion. Finally the Board finds that the Veteran should be afforded VA examinations related to his claims. He was previously afforded a VA respiratory disorder examination in August 2010; however, no medical nexus opinion was requested or provided. He has not been provided VA examination with regard to his claims for service connection for his bilateral knee disorders or his sleep apnea. The Veteran has submitted multiple statements setting forth his contentions as to why he believes that his claimed conditions are related to his military service, to include statements of onset in service and continuity since service. The Board finds that the Veteran has submitted sufficient evidence to trigger the duty to assist in obtaining VA examinations and medical opinions. 38 C.F.R. § 3.159(c)(4); See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. A search should be undertaken at the RO within that facility for the Veteran's service treatment records for his first period of active duty from November 1974 to November 1977, which appear to have been received by the RO on October 30, 2009. If the record are not found, then a formal finding of unavailability of the November 1974 to November 1977 service treatment records should be made and a memorandum setting forth in detail the efforts undertaken to locate the these missing records should be associated with the Veteran's claims file. The Veteran should also be advised of the finding of unavailability of these records. 2. Contact the Veteran and ask him to clarify whether the knee injury incurred at Fort Campbell, Kentucky, occurred in 1975 or 1976. Thereafter, the National Personnel Records Center (NPRC), or any other appropriate agency, should be contacted and requested to conduct a search of the Army hospital at Fort Campbell, Kentucky, for treatment for a knee injury in the timeframe identified by the Veteran. Associate all requests and records received with the claims file. If records are unavailable from any sources, a negative reply is requested. 3. Contact the Veteran and advise him that he should submit to VA treatment records from his private physician that establish the onset and a continuity of his claimed asthma, including records from 1991 to 2005 that he identified in his November 2010 Notice of Disagreement, or provide VA with a release so that it may obtain these records from this private physician. If the Veteran provides a release to VA, then the identified records should be requested from the private physician and, if obtained, associated with the claims file. If records are not available, a negative reply should be obtained and associated with the claims file. 4. After all additional documentary evidence has been obtained and associated with the claims file, the Veteran should be scheduled for appropriate VA examinations. The claims folder and copies of all pertinent records should be made available to the examiners for review. * Bilateral knee disorders - After reviewing the file, examining the Veteran and conducting any necessary testing, the examiner should render a diagnosis of any current knee disorder(s) the Veteran has, whether unilateral or bilateral. If any disorder is found, the examiner should than render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that each current disorder found on examination is related to any disease or injury incurred during service, specifically to the injuries reported to have been incurred in January 1975, the summer of 1975/1976 and in 1992/1993. In rendering an opinion, the examiner should take into consideration the Veteran's report of onset and continuity of symptoms, if any. If service treatment records for the Veteran's period of active duty from November 1974 to November 1977 are not available for review, the examiner should not consider the lack of evidence of treatment during this period of service to be negative evidence. * Respiratory Disorder - After reviewing the file, examining the Veteran and conducting any necessary testing, the examiner should render a diagnosis of any current respiratory disorder present. Thereafter, the examiner should render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that each respiratory disorder identified on examination is related to one of the following: (1) Any disease, injury or event incurred during the Veteran's periods of active duty from November 1974 to November 1977 and February 1982 to January 1986; or (2) Any disease, injury or event incurred during a period of active duty for training from December 1977 to January 1982 and February 1986 to December 1994; or (3) Any injury or event incurred during a period of active duty for training from December 1977 to January 1982 and February 1986 to December 1994. In rendering an opinion, the examiner should consider the Veteran's contentions that his current respiratory problems (currently diagnosed as bronchial asthma) are related to the history of hay fever noted in the October 1974 through June 1990 examination reports. The examiner should also consider the Veteran's contentions that his current respiratory problems are related to exposure to hazardous environmental conditions, specifically exposure to mold during active duty (from 1974 to 1977 - from being housed in moldy temporary barracks and working next to the tent shop in which there were hundreds of moldy tents; from 1982 to 1986 - working in supply area that contained moldy canvas and equipment and visiting Equipment Concentration sites loaded with mold) and reserve duty (sleeping in molding tents, working in supply areas that contained moldy canvas and equipment, and visiting Equipment Concentration sites loaded with mold). * Sleep apnea - The examiner should be advised that the Veteran has a confirmed diagnosis of obstructive sleep apnea based upon a sleep study conducted in February 2011 (see private treatment records received in December 2012). The examiner should render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's sleep apnea is related to one of the following: (1) Any disease, injury or event incurred during the Veteran's periods of active duty from November 1974 to November 1977 and February 1982 to January 1986; or (2) Any disease, injury or event incurred during a period of active duty for training from December 1977 to January 1982 and February 1986 to December 1994; or (3) Any injury or event incurred during a period of active duty for training from December 1977 to January 1982 and February 1986 to December 1994. In rendering an opinion, the examiner should consider the Veteran's reports of having sleep problems since service, and his statements that stress during service contributed to his current sleep problems. * Each examiner should give a detailed explanation for the reasons for the opinion(s) provided. If an examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. 5. Thereafter, the Veteran's claims should be readjudicated with appropriate consideration given of the Veteran's different types of duty (i.e., active versus inactive). If such action does not resolve the claims, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, these claims should be returned to this Board for further appellate review, if in order. The Veteran 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 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs