Citation Nr: 1639542 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 10-31 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a right knee disorder. 3. Entitlement to service connection for diabetes mellitus (diabetes). 4. Entitlement to service connection for peripheral neuropathy of the left lower extremity. 5. Entitlement to service connection for peripheral neuropathy of the right lower extremity. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The Veteran had active duty in the United States Army from June 1987 to August 1987 and then service in United States Army National Guard from November 1985 to March 1988. He served on active duty in the United States Air Force from March 1988 to March 1993. Thereafter, he had service in the United States Air National Guard from March 1993 to June 2007. From December 2001 to March 2002, his unit was called to active duty. He was assigned to the Retired Reserve List in February 2008. This matter came to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the RO. In March 2013, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. In August 2014, the Board reopened the claims for service connection for a left shoulder disability, service connection for a left knee disability, and service connection for a right knee disability. The Board then remanded all three issues as well as the issues of service connection for diabetes mellitus, service connection for peripheral neuropathy for the left lower extremity, and service connection for the right lower extremity to the RO for additional development. In a rating decision in July 2015, the RO granted service connection for the left shoulder disability, effective December 2008 and awarded a 10 percent rating. This is considered a full grant of the benefit sought on the appeal for the claim of service connection for the left shoulder disability. Holland v. Gober, 10 Vet. App. 433, 436 (1997). The other issues are discussed in the remand section below. The Board notes that the Veteran has filed a notice of disagreement at the RO concerning the initial rating for the left shoulder disability as shown in the electronic claims file (VBMS). Furthermore, a statement of the case was issued in November 2015 and the Veteran filed his substantive appeal in January 2016. He requested a video hearing in his substantive appeal. The RO has not certified the appeal to the Board for review and appears to be currently in the process of processing the appeal. Action by the Board at this time may serve to actually delay the RO's action on that appeal. As such, no action will be taken by the Board at this time, and the issue presently before the RO pertaining to a higher rating for the left shoulder disability will be the subject of a later Board decision, if ultimately necessary In the March 2013 Board hearing, the Veteran raised the issue of service connection for a left elbow disability. The issue of service connection for a left elbow disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims for service connection for disabilities of each knee, diabetes, and peripheral neuropathy of each leg. As noted above, the Veteran's Air National Guard unit was called to active duty from December 2001 to March 2002. While the service treatment records from the Air National Guard unit have been obtained, they cover only the time the unit was in reserve status. There is no indication, however, that the Veteran's service treatment records for the period of active duty from December 2001 to March 2002 have been obtained. A remand is therefore necessary to obtain these records particularly as it is asserted that the Veteran had undiagnosed diabetes in 2001 and 2002 when the Veteran and his unit served in active status, and it remained undiagnosed until he also developed peripheral neuropathy symptoms. This resulted in the diagnosis of both conditions in June 2005. In addition, the file contains VAMC treatment from April 2006 to April 2008 and from March 2016 to April 16, 2016, plus one VAMC note dated in October 2015. That note indicated it was a follow-up, which indicates that there was VAMC treatment before then. In addition, it refers to planned surgery and that the Veteran needed further medical evaluation before the surgery occurred. The pre-operative medical evaluation is not part of the record as the March 2016-April 2016 records begin with the surgical report. VA medical records, even if not in the claims file, are nevertheless considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C.A. § 5103A (b) (West 2002); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them). The Board has determined that the missing records should be associated with the file. To ensure that everything is of record, all VAMC records between April 2008 and March 2016 should be obtained. Ongoing VA medical records should also be obtained. A previous remand confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the August 2014 remand, the Board directed the Veteran be provided a VA examination to discuss whether the Veteran's current knee disabilities are related to service. The VA examiner was asked to discuss inservice injuries (left knee in September 1989, and right knee in August 1990) as well as the statement from Dr. D. Kammerer dated in October 2010. The remand also directed the entire claims file be made available for the VA examiner's review. VA provided the Veteran with a VA examination in February 2015 with an addendum in August 2015 (addressing the right knee only). In this instance, it is unclear whether the examiner reviewed only VAMC records or reviewed the entire file. At one portion of the report, the VA examiner states he did review the file, but at another point, he states he reviewed only VAMC records. In either event, he did not review and therefore comment on the October 2010 statement from Dr. K. He specifically stated he could not find Dr. Kammerer's October 2010 statement. The examination report is also inconsistent as the VA examiner at one point, states there is no knee disability but at another point states the Veteran has arthritis (chondromalacia) as well as noting X-ray evidence demonstrating spurring of the patella. Finally, the VA examiner was asked to provide a rationale for all opinions rendered. In part, the examiner's opinion was based on the lack of knee complaints in the separation examination or other medical records until recently. The Board notes the separation examination in 2007 was a specific evaluation to determine the Veteran's fitness for continued duty now that he had insulin dependent diabetes. It only mentioned peripheral neuropathy as a possible complication and no area covered complaints, symptoms, signs, treatment, or a diagnosis of the knees. In short, the examination was not designed to elicit all of the Veteran's medical problems at separation and focused only on the severity of diabetes. The Veteran, however, stated that after the injuries to his knees, he had continued pain. Although noting the Veteran's history of continued symptoms, the VA examiner relied solely upon complaints noted in the treatment records to conclude the Veteran did not have ongoing problems with his knees after the service incidents that resulted in injuries to the knees. Thus, the expert did not consider the Veteran's evidence that he not only had an injury to each knee in service, but he continued to experience symptoms through service up until the present. Lay evidence concerning the onset of symptoms, if credible, is competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). When the Board relies on a medical opinion, such opinion must be adequate for judicial review. D'Aries v. Peake, 22 Vet.App. 97, 104 (2008). A medical opinion is considered adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Id. (quoting Green v. Derwinski, 1 Vet.App. 121, 124 1991)); see also Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007). The Board thus finds the February 2015 VA examination is inadequate and a new VA examination must be provided to the Veteran. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. The Board has also determined the Veteran should receive a VA examination to address whether the Veteran's diabetes had its onset before or during the period of active duty from December 2001-March 2002. Although diabetes was first diagnosed in June 2005 when the Veteran was in the reserves, Dr. Kammerer noted the diagnosis occurred because of the Veteran seeking treatment for peripheral neuropathy symptoms. Dr. Kammerer stated that the diabetes had to pre-exist the peripheral neuropathy for some time before it lead to the Veteran also developing peripheral neuropathy. The Veteran testified that in retrospect, he started developing diabetic symptoms such as excessive thirst and urination while on active duty in Kuwait. Accordingly, the Veteran should be provided a VA examination to determine if the diabetes had its onset in service between December 2001 and March 2002. If the diabetes had its onset before service, then the examiner should determine it the diabetes was aggravated by service. Accordingly, the case is REMANDED for the following action: 1. The RO should request the Veteran's complete service treatment records for the period of active duty from December 2001 to March 2002. All attempts to obtain these records should be documented in the file. Any negative replies must be in writing, and associated with the file 2. Obtain all VA medical records of treatment of the Veteran at the VAMC and associated outpatient clinics from March 2008 to the present. All attempts to obtain these records should be documented in the file. Any negative replies must be in writing, and associated with the file. 3. Ask the Veteran to provide or authorize VA to obtain records of any medical provider, to include updated records from the Albert Lea Medical Center-Mayo Clinic that have not been previously obtained or submitted by the Veteran to VA. All efforts to obtain these records must be documented in the file. The RO should make two attempts to obtain these records once authorization is obtained, unless the first attempt reveals that further attempts would be futile. If no records are obtained, the RO should notify the Veteran of the records that could not be obtained, notify the Veteran of the steps taken to obtain the records, and notify the Veteran he may submit any such records in his possession. 4. After the record development is completed, provide the Veteran with a VA orthopedic examination. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The rationale for all opinions should be provided. The examiner is asked to determine whether the Veteran has a knee disability in either knee. For each such disability diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disability began in service or is causally and etiologically related to service, to specifically include the Veteran's competent lay statements, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. Any opinion provided should be reconciled with the previous opinions obtained. The examiner is advised that lay evidence of continuity of symptoms, after service, if credible, is competent evidence, regardless of the lack of contemporaneous medical evidence. Nevertheless there still must be a factual showing that a symptom, for example pain, is derived from an injury, disease, or event in service. The examiner is asked to specifically discuss the Veteran's evidence by himself and others that he continued to experience pain and swelling after the injuries noted in service, which the Veteran treated himself with, for instance, ice. The VA examiner is also asked to comment on the Veteran's complaint of knee pain at an October 1993, which is approximately seven months after separation from the Air Force in March 1993 and complained of knee pain in December 2002 which is approximately nine months after the Veteran and his unit returned to reserve status from active status. The examiner is asked to discuss the clinical significance of a history of Osgood- Schaltter's disease that was asymptomatic by November 1985. A complete rationale for any opinion offered should be provided. 5. After the record development is completed, provide the Veteran with a VA diabetes examination. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The rationale for all opinions should be provided. The examiner is asked to determine whether it is at least as likely as not (50 percent probability or more) that the diabetes began in service or is causally and etiologically related to service, to specifically include the Veteran's competent lay statements, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. Any opinion provided should be reconciled with the previous opinions obtained. The examiner is advised that lay evidence of continuity of symptoms, after service, if credible, is competent evidence, regardless of the lack of contemporaneous medical evidence. Nevertheless there still must be a factual showing that a symptom, for example pain, is derived from an injury, disease, or event in service. The examiner is asked to discuss the clinical significance of the opinion letters of Dr. D. Kammerer in May 2009, June 2010, and October 2010 that diabetes had been present for many years before diagnosis in June 2005 because of the presence of peripheral neuropathy at diagnosis and the relatively short period thereafter before the Veteran had to start using insulin. The examiner is asked to specifically discuss the Veteran's evidence that he first started experiencing diabetic symptoms such as excessive thirst, excessive urination, and weight loss while deployed in Kuwait. The examiner is also asked to discuss the clinical significance of the Veteran's diagnosis was changed from diabetes type II to diabetes type I in June 2014. If the examiner determines that diabetes is not related to service, then the examiner is also asked to determine whether it is at least as likely as not (a 50 percent probability or more) diabetes was caused by or aggravated by the Veteran's service from December 2001 to March 2002. The examiner is also asked to determine whether the Veteran has a peripheral neuropathy disability. If such disability is diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disability began in service or is causally and etiologically related to service, to specifically include the Veteran's competent lay statements, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. Any opinion provided should be reconciled with the previous opinions obtained. If the examiner determines that a peripheral neuropathy disability is not related to service, then the examiner is also asked to determine whether it is at least as likely as not (a 50 percent probability or more) any peripheral neuropathy disability was caused by or aggravated by the Veteran's diabetes and/or service connected disabilities. The examiner is specifically asked to reconcile the diagnosis of peripheral neuropathy due to diabetes noted in the Veteran's various treatment records and the finding of no peripheral neuropathy in the February 2015 VA examination as well as the conclusion of the VA examiner in February 2009 that the Veteran had peripheral neuropathy but it was unrelated to diabetes. The examiner is further advised that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. The examiner must not rely solely on the absence of diabetes diagnosis or treatment in service as the basis for a negative opinion. The question is whether the current diabetes is related to service. A complete rationale for any opinion offered should be provided. 6. After the development requested is completed, readjudicate the claims for service connection. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board. The Veteran 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). _________________________________________________ Kelli Kordich Acting 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).