Citation Nr: 1631950 Decision Date: 08/11/16 Archive Date: 08/23/16 DOCKET NO. 14-14 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial disability rating for a left hip strain in excess of 10 percent. 2. Entitlement to service connection for bilateral knee disability. 3. Entitlement to service connection for a right wrist disability. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2005 to June 2010. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The record before the Board consists of the Veteran's electronic records located within the Veterans Benefits Management System (VBMS) and Virtual VA. In September 2010, the Veteran filed a claim for service connection for a left hip injury, a right knee injury, a left knee injury, and a right wrist injury. In a March 2011 decision, the RO granted service connection for a left hip disability and assigned a 10 percent disability rating. In that same decision, the RO denied service connection for the Veteran's bilateral knee and right wrist disabilities. A timely Notice of Disagreement was received, a Statement of the Case was issued on December 31, 2013, and an untimely VA Form 9 substantive appeal was received on March 3, 2014. 38 C.F.R. § 20.302 (2016). However, the Board finds that the filing of a timely substantive appeal as to these issues is waived because the RO continued to take action on these claims, indicating that the Veteran had perfected her appeal to the Board. See Percy v. Shinseki, 23 Vet. App. 37, 43-45 (2009); see also Gonzalez-Morales v. Principi, 16 Vet. App. 556, 557 (2003). Accordingly, the Board has jurisdiction over the issues listed on the cover page. Following a March 2011 examination, the RO sent the Veteran a letter inviting her to file a claim for service connection for a right hip strain. She did not respond to that letter. In her March 2014 substantive appeal the Veteran indicated that her hip injury was a bilateral injury, yet she has not filed a claim for service connection for a right hip disability. In her June 2011 Notice if Disagreement, the Veteran noted that her right wrist claim was for the left wrist, and in her March 2014 substantive appeal she indicated her injury was a bilateral wrist injury. In a letter dated in June 2015, the Veteran stated she wished to file a claim for service connection for a left wrist injury. Thereafter, the RO sent the Veteran a letter informing her that VA regulations now require all claims to be submitted on a standardized form and explaining the process of how to submit a formal claim. The Veteran has not responded to that letter nor has she filed a claim for service connection for a left wrist disability. Accordingly, the issues of service connection for a left wrist injury and a right hip injury have not been formally claimed and are not pending before VA. The Veteran is again reminded that if she wishes to file claims for service connection for a left wrist disability and a right hip disability that she must follow the required procedures under 38 C.F.R. § 3.155 (2016) for filing a claim for VA benefits. REMAND Left Hip Disability The Veteran was afforded examinations to assess the severity of her left hip strain in March 2011 and November 2014. Recently, the U.S. Court of Appeals for Veterans Claims determined that the final sentence of 38 C.F.R. § 4.59 (2016) requires that VA examinations include joint testing for pain on active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, No. 13-3238, 2016 WL 3591858 (Vet. App. July 5, 2016). The March 2011 and November 2014 examination reports do not contain all the required range of motion testing, and the examiners have not indicated that they were unable to conduct the required testing. Accordingly, a new examination is required. Right Wrist Disability & Bilateral Knee Disability The Veteran underwent a QTC examination for her knees and right wrist in March 2011. The examiner diagnosed a right wrist strain and a bilateral knee strain yet failed to opine as to the etiology of those disabilities. In November 2014, the Veteran was afforded a new VA examination and the examiner determined the Veteran did not have any current diagnoses associated with her right wrist and knees. The examiner found, based on the absence of any right wrist or left knee complaints or diagnoses in the Veteran's service treatment records and only a single documentation of a right knee twist, that the Veteran's claimed injuries were less likely than not due to her active duty service. The examiner essentially discounted the Veteran's credible lay statements regarding pain and injuries she incurred during service, and therefore, the opinion is inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (finding that a VA examiner impermissibly ignored a Veteran's lay assertions that he sustained a back injury during service); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (finding that an examiner "failed to consider whether [] lay statements presented sufficient evidence of etiology of [the veteran's] disability such that his claim of service connection could be proven") Moreover, the November 2014 examiner failed to provide an opinion regarding the March 2011 diagnoses of a right wrist strain. Although the November 2014 examiner did not find any current diagnosis associated with the Veteran's right wrist and knees at the examination, for service-connection claims, the requirement that a current disability be present is satisfied, "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, a remand is required to obtain an adequate VA examination and opinion, which considers the Veteran's credible lay statements regarding pain and injuries during service, and which addresses all right wrist and bilateral knee disorders present during the period of the claims. While this case is in remand status, development to obtain any outstanding medical records pertinent to the claims should also be completed, to include all VA treatment records from September 2011 to the present. Accordingly, the case is REMANDED to the RO or the Appeals Management Center (AMC) in Washington, D.C. for the following actions: 1. The RO or AMC should undertake appropriate development to obtain any outstanding medical records pertinent to the Veteran's claims, to include all VA treatment records from September 2011 to the present. 2. Then, afford the Veteran a VA examination by an examiner with sufficient expertise to determine the current degree of severity of the Veteran's service-connected left hip disability. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. The RO or the AMC should ensure that the examiner provides all information required for rating purposes. As noted above, the examiner must conduct range of motion testing for both the service-connected left hip and the nonservice-connected right hip. Specifically, the examiner must record for both hips: * range of active motion; * range of passive motion; * range of motion with weight-bearing; and * range of motion without weight-bearing. If the examiner is unable to conduct the required range of motion testing, he or she should clearly explain why that is so. 3. Afford the Veteran a VA examination by a physician with sufficient expertise to determine the etiology of all right wrist, right knee, and left knee disorders present during the period of the (from September 2010 to the present). Any indicated diagnostic tests and studies should be accomplished. The examiner must identify all right wrist disorders that have been present during the period of the claim (from September 2010 to the present). With respect to each such disorder, to include the diagnosis of right wrist strain documented in the March 2011 examination report, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder began during service or is otherwise etiologically related to the Veteran's service. The examiner must identify all right knee disorders that have been present during the period of the claim (from September 2010 to the present). With respect to each such disorder, to include the diagnosis of right knee strain documented in the March 2011 examination report, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder began during service or is otherwise etiologically related to the Veteran's service. The examiner must identify all left knee disorders that have been present during the period of the claim (from September 2010 to the present). With respect to each such disorder, to include the diagnosis of left knee strain documented in the March 2011 examination report, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder began during service or is otherwise etiologically related to the Veteran's service. For purposes of the opinions, the examiner should assume the Veteran is a reliable historian. A complete rationale for all opinions expressed must be provided and must specifically include a discussion of the symptoms the Veteran experienced during and since service. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, it must be so stated, and he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. The RO or the AMC should also undertake any other development it deems to be warranted. 5. Then, the RO or the AMC should readjudicate the Veteran's claims. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and her representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case must be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until she is otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND 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). _________________________________________________ Shane A. Durkin 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) (2016).