Citation Nr: 1634742 Decision Date: 09/02/16 Archive Date: 09/09/16 DOCKET NO. 11-23 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1965 to June 1968 and May 1969 to February 1977, with three years of prior active service. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Houston, Texas Department of Veteran Affairs (VA) Regional Office (RO). In October 2015, the case was remanded for the Veteran to be scheduled for a hearing before the Board. In June 2016, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND First, the Board notes that certain service treatment records (STRs) appear to be outstanding. The Veteran's discharge documents indicate that he had three years of active service prior to June 1965, but there are no records pertaining to this period, and no evidence suggesting such records are unavailable. As any such records are likely to contain pertinent evidence and are constructively of record, they must be sought. Second, there are virtually no medical treatment records in the record. The only pertinent medical evidence consists of a July 2016 questionnaire completed by a private physician. The Veteran himself has reported in statements and hearing testimony that he underwent a recent left total knee replacement and right knee injections, and may soon require a right total knee replacement. He has not reported any VA treatment, and appears to have received private treatment for his back and knee disabilities. Records of such treatment are likely to contain pertinent information and should be secured. The Veteran is advised that, while VA will attempt to help him secure pertinent private medical records, he has the ultimate burden to ensure that such evidence is in the record. The Veteran was afforded a May 2011 VA examination in conjunction with his claim of service connection for a low back disability. Lumbar degenerative spondylosis was diagnosed. The examiner opined that the Veteran's low back disability is unrelated to service, but instead is age-related, the examiner noted that the Veteran left service in 1977 and has been able to work since. However, a former supervisor's statement indicates that the Veteran entered employment in 1978 with pre-existing back problems that restricted the types of duties he could perform, and continued to experience such problems through the end of his employment there in 1981. Two additional statements from other former employers attest to ongoing back problems from 1998 to 2006 and from 2007 to 2011 (when the statements were submitted). These statements are competent and credible evidence of continuity of back pain since service that was not considered by the May 2011 examiner. Notably, the examiner's rationale cites to the Veteran's ability to work after discharge. However, that does not preclude that there was low back pathology that is part of, or a precursor to, his present low back disability. A supplemental medical advisory opinion is needed for diagnostic clarification. The record includes a July 2016 questionnaire from a private physician indicating the Veteran has bilateral knee osteoarthritis, and the Veteran has suggested that his current knee problems may be related to the aggregate stress on his knees from running and exercise in preparation for physical fitness tests throughout his active service. Under the circumstances, and particularly considering that pertinent records appear to be outstanding, the Board finds that the low threshold for determining when VA must provide the Veteran an examination is met. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the case is REMANDED for the following: 1. The AOJ should arrange for verification of the Veteran's (three years of) active service prior to June 1965, and arrange for an exhaustive search for all STRs from that period. If the records sought are not located, the scope of the search should be noted in the record. 2. The AOJ should ask the Veteran to identify (and provide authorizations for VA to secure complete records of) all providers of private evaluations and treatment the Veteran has received for his back and knees. The AOJ should secure for the record complete records of the evaluations and treatment from all providers identified (to specifically include records pertaining to recent right knee injections and a left total knee replacement). If any records sought are unavailable, the reason for their unavailability must be noted in the record. 3. The AOJ should then arrange for an orthopedic examination of the Veteran to ascertain the likely etiology of his back and bilateral knee disabilities. The entire record must be reviewed by the examiner in conjunction with the examination. Based and such review, and examination and interview of the Veteran (and specifically considering the statements in the record regarding postservice continuity of back complaints) the consulting physician should opine whether it is at least as likely as not (a 50 percent or better probability) that the Veteran's current lumbar degenerative spondylosis is related to his military service/activities therein. The examiner should also ascertain the nature and likely etiology of the Veteran's right and left knee disabilities. Based on review of the record and examination/interview of the Veteran the examiner should provide opinions that respond to the following: a. Please identify, by diagnosis, each right and left knee disability entity found. b. Regarding each knee disability entity diagnosed, please opine whether it is at least as likely as not (a 50 percent or better probability) that such disability is related to the Veteran's military service, to include the aggregate effect of his running and exercise activities therein? c. In not, please identify the etiology for the knee disabilities considered more likely, and explain why that is so. All opinions must include rationale. 4. The AOJ should then review the record and readjudicate the claims. If any remain denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the record to the Board. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ GEORGE R. SENYK 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).