Citation Nr: 1614092 Decision Date: 04/07/16 Archive Date: 04/25/16 DOCKET NO. 10-18 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for disabilities of the right and left knees. 2. Entitlement to service connection for a disability of the right elbow. 3. Entitlement to a disability rating in excess of 50 percent for a mood disorder. 4. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Heather Harter, Counsel INTRODUCTION The Veteran served on active duty from July 2005 to October 2006. This matter comes before the Board of Veterans' Appeals (Board) from multiple RO decisions. In July 2014, the Veteran presented sworn testimony in support of his appeal during a hearing at the RO before the undersigned Veterans Law Judge. Prior to the hearing, VA received notification from the Veteran that he wished to withdraw his appeals for entitlement to an increased disability rating for a thoracic spine disability, entitlement to an increased disability rating for migraine headaches, entitlement to service connection for PTSD, entitlement to service connection for esophageal reflux, and entitlement to service connection for a skin disorder to include tinea versicolor. Accordingly, the Board does not have jurisdiction to review the these issues. The remaining claims on appeal are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Initially, the Board notes that the Veteran's service treatment records are not contained in the claims file. There are two separate matters involving the Veteran's service treatment records, which the RO has somewhat confusingly addressed together in a single memorandum. First, it appears that the original request for the Veteran's service treatment records yielded records which did not include his mental health records, as mental health records usually require a separate request. The RO then requested these mental health records directly from the Veteran's squadron. The squadron responded that they could only release mental health records if the Veteran himself signed an authorization for such release. It appears that the Veteran has not done so, and in fact, failed to respond to VA's requests for him to execute a release. As mental health service records may not be relevant to the issues on appeal, their absence is likely not critical to the resolution of the Veteran's appeals. Second, review of the file shows that the available service treatment records were provided along with his claims file to the VA Medical Center in Phoenix for review in conjunction with a VA examination. The claims file was not returned to the RO from the Medical Center, and was presumably lost in transit, to include the Veteran's service treatment records. Although the RO has reconstructed most of the contents of the Veteran's claims file, the service treatment records were apparently original documents and have not been reconstructed. According to a memorandum prepared for the file, the RO did request any copies of the Veteran's service treatment records from the VA's Records Management Center; however, that Center replied that they had conducted a special search but no additional records pertaining to the Veteran had been identified. It is these records which would likely be relevant to the issues on appeal, involving the Veteran's knees and right elbow. However, from the Veteran's testimony and his VA Form 9, he denies seeking medical treatment for the knees and elbow during service, so the missing service treatment records would not contain relevant treatment. In cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). In this case, as mentioned above, the bulk of the Veteran's service medical records are missing. The VA's analysis of the Veteran's appeals must be undertaken with this heightened duty in mind. In this case, because it would appear that the Veteran's service treatment records were lost following a 2009 VA examination, the report of this examination wherein the examiner indicated that he had reviewed the Veteran's claims file must be accorded the appropriate probative weight, as the only medical opinion of record which was informed by review of the service treatment records. As this opinion was rendered with the benefit of the Veteran's service treatment records, the examiner's conclusions must necessarily be viewed as more informed than subsequent reviews, made without access to the Veteran's service treatment records. Service connection When the Veteran initially filed his claim for service connection, he contended that he had injured his neck and fractured his T-1 vertebra during a physical fitness exercise. He repeated this contention to the VA's orthopedic examiner in October 2009. With regard to his knees and his right elbow, he stated to the examiner that he had experienced an onset of knee pain and elbow pain around March of 2006, approximately the same time as his upper back, but there had been no particular injury to either his knees or his elbow. In recent statements and during the July 2014 hearing on appeal, however, the Veteran presented a new theory of entitlement. He contends that he injured his knees and his elbow carrying heavy appliances up three flights of stairs during his active duty. He testified that he believes he sustained "microfractures" of both knees during this strenuous activity, and that he strained his right elbow. He has submitted statements from two individuals who were also involved in moving the appliances along with him, verifying his presence and participation. This theory of injury is a new one, which has not been reviewed by a medical professional. Therefore, a remand to obtain a nexus opinion is necessary. Additionally, review of the Veteran's outpatient treatment records, many of which were submitted after the Board hearing without a waiver of RO review, do not contain a current diagnosis involving the Veteran's knees or his elbow. Rather, they reflect multiple complaints of knee pain, but no actual disability causing the pain is identified in the record. Therefore, a VA examination is necessary to identify current disability involving both knees and the right elbow. We note that the 2009 VA examination discussed above yielded the diagnoses of strain only, and did not show the presence of a chronic disability at that time. Thus, the questions of whether the Veteran has current disabilities involving his knees and right elbow and if so, whether such disabilities can be medically linked to the events he has described in service, must be resolved. As the case must be remanded anyway, his recent VA treatment records should be updated for RO review. VA medical records are deemed to be constructively of record in proceedings before the Board and should be obtained prior to further review of the claims file. Bell v. Derwinski, 2 Vet. App. 611 (1992). Increased ratings In September 2013, the RO denied an increased disability rating for the Veteran's service-connected mood disorder and denied entitlement to unemployability compensation benefits. In February 2014, the Veteran disagreed with the denial of an increased disability rating and the denial of unemployability compensation benefits. This February 2014 statement constitutes a notice of disagreement with these aspects of the September 2013 decision, because it was filed within the requisite time period and it indicates dissatisfaction and a desire to contest the denial. 38 C.F.R. §§ 20.201, 20.302. It does not appear that the RO has yet issued a statement of the case however. After a notice of disagreement has been filed in any claim, the RO is required to issue a statement of the case containing a summary of the evidence, the applicable laws and regulations, and an explanation as to the decision previously reached, unless the Veteran has withdrawn the notice of disagreement. 38 C.F.R. §§ 19.26, 19.29. Technically, when there has been an initial RO adjudication of a claim and a notice of disagreement has been filed as to its denial, thereby initiating the appellate process, a remand is required for procedural reasons. Manlincon v. West, 12 Vet. App. 238 (1999). Thus, the Board accepts limited jurisdiction over these issues, for the sole purpose of remanding to order issuance of a Statement of the Case along with information about the process for perfecting an appeal as to this claim, if the Veteran so desires. Accordingly, the case is REMANDED for the following actions: 1. The RO should obtain all records of VA medical treatment afforded to the Veteran by the Phoenix VA Health Care System and all related clinics since August 2014 for inclusion in the file. 2. The Veteran should be afforded a VA orthopedic examination to identify all current disability involving the Veteran's knees and his right elbow. The claims folder, including all records obtained pursuant to the above request, must be made available to the examiner for review before the examination. The examiner should render an opinion as to whether the disabilities identified are more, less, or equally likely to be related to service in any way, to include the episode reported by the Veteran where he moved heavy appliances up multiple flights of stairs. A complete explanation for all conclusions reached should be provided in the examination report. 3. After the development requested above has been completed to the extent possible, the RO should again review the record, to include all VA medical records received since the most recent RO review. If service connection for disabilities of the knees or right elbow remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 4. The RO should furnish the Veteran with a Statement of the Case pertaining to the issues of entitlement to an increased disability rating for the Veteran's service-connected mood disorder and entitlement to unemployability compensation benefits. These claims will not be returned to the Board unless the Veteran perfects an appeal by filing a timely substantive appeal. The appellant has the right to submit additional evidence and argument on the matter or 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 2014). _________________________________________________ MICHELLE L. KANE 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) (2015).