Citation Nr: 1641571 Decision Date: 10/26/16 Archive Date: 11/08/16 DOCKET NO. 08-15 546 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for a left knee disability, also characterized as a left shin disability, to include as secondary to service-connected residuals of a left lower anterior tibia laceration, painful scar due to residuals of lacerations, and/or neuropathy of the left lower extremity, associated with residuals of left lower anterior tibia laceration. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran had service in the U.S. Army Reserves and was issued a DD Form 214 for a period of service from March 29, 1989, to July 14, 1989. Also, the Veteran has been awarded service-connected compensation for disabilities incurred during this period of service. Status as a veteran based on his service from March 29, 1989, to July 14, 1989, has, thus, been established. The Veteran also had additional service in the Alabama Army National Guard. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2006 rating decision in which the RO in Jackson, Mississippi denied service connection for a left ankle condition and a left shin condition. In November 2006, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in March 2008, and the Veteran filed a timely substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2008. During the pendency of the appeal, the jurisdiction of the Veteran's claims file and appeal was transferred to the RO in Atlanta, Georgia, and then to the RO in Columbia, South Carolina. In May 2011, the Veteran did not appear for a scheduled Board hearing at the RO (Travel Board hearing). In December 2011, the matter on appeal was remanded for further development, to include obtaining pertinent treatment records and a VA examination. In a May 2012 rating decision, the agency of original jurisdiction (AOJ) granted a separate 10 percent rating for a painful scar due to residuals of a laceration to the left lower anterior tibia. In August 2012, the matter was again remanded to afford the Veteran a Board hearing. In January 2013, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In March 2013, the matter was again remanded for further development, to include obtaining a medical opinion addressing whether it at least as likely as not that the Veteran's left knee disability is aggravated by his service-connected residuals of the left lower anterior tibia laceration. After completing the requested development, the RO continued to deny the claim (as reflected in an October 2014 supplemental SOC (SSOC)) and in February 2016 the matter was received Board for further appellate consideration. The Board notes that in response to the RO's October 2014 SSOC, the Veteran's then-attorney filed an additional VA Form 9 wherein he requested that the Veteran be scheduled for Board video-conference hearing. The Veteran's attorney did not allege that the January 2013 hearing was in any way deficient and provided no argument for why the Veteran should have an additional hearing. Under 38 C.F.R. § 20.700(a) (2015), a veteran is entitled to "a hearing on appeal," not multiple hearings. Good cause as to why a second hearing should be provided has not been demonstrated. As such, providing the Veteran with a second Board hearing is not required. See 38 C.F.R. §§ 20.700(a), 20.1304(b) (2015). Furthermore, in July 2016, the Veteran indicated his desire to withdraw his hearing request. See July 2016 Report of General Information. In July 2016, the Veteran was awarded service connection for neuropathy of the left lower extremity affecting the deep peroneal nerve, as well as for neuropathy of the left lower extremity affecting the internal saphenous nerve, both of which were established as related to the service-connected disability of residuals of laceration, left lower anterior tibia. As regards the matter of representation, the Board notes that the Veteran previously was represented by private attorney, Kenneth LaVan, with regard to the claim on appeal. In August 2015, the private attorney filed a motion to withdraw as the Veteran's representative, asserting that various factors would make continued representation impractical or otherwise unethical. See 38 C FR § 20 608(b)(2) (2015). The undersigned granted the motion in May 2016, prior to which time the Veteran had filed a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) in favor of Disabled American Veterans. Then, on June 17, 2016, the Veteran filed with the RO a VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits), claiming service connection for a right knee disability, hearing loss, tinnitus, and erectile dysfunction. The Veteran also filed a VA Form 21-22 in favor of The American Legion. As the power of attorney executed in favor of The American Legion was in no way limited, Disabled American Veteran's power of attorney was effectively revoked. As such, the Board recognizes The American Legion as the Veteran's representative in the matter currently before it. Although The American Legion has not had the opportunity to review the record or submit argument in connection with the current claim, because the matter is being remanded, The American Legion will have an opportunity to do so while the claim is pending at the AOJ and prior to any recertification to the Board. This appeal is now being processed utilizing the Veterans Benefits Management System (VBMS), a paperless, electronic claims processing system. The Board notes that, in addition to the VBMS file, the Veteran has a separate paperless, electronic Virtual VA file. All records have been reviewed. For reasons expressed below, the claim on appeal is, again, being remanded to the AOJ. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately, the Board finds that further AOJ action on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision in in this matter. As noted in the Introduction above, the Board remanded the left knee service connection claim in 2013. Specifically, it was determined that a January 2012 VA medical opinion was inadequate because the examiner did not explicitly address whether the service-connected residuals of a left lower anterior tibia laceration aggravated the Veteran's left knee disability. See38 C.F.R. § 3.310 (2015) (providing that service connection may be granted for disability that is caused or aggravated by a service-connected disease or injury). The Board thus directed the RO to obtain an addendum opinion addressing whether it at least as likely as not that the Veteran's left knee disability is aggravated by his service-connected residuals of the left lower anterior tibia laceration. An addendum opinion was obtained in June 2014. Specifically, the examiner who had examined the Veteran in January 2012 opined that it is less likely than not the laceration on the left lower anterior tibia caused or aggravated the left knee degenerative joint disease. As rationale for that opinion, the examiner reiterated statements made in the January 2012 examination report and added a discussion of certain lay and other medical evidence. Notably, the examiner twice referenced a July 1993 examination report, stating, in essence, that the Veteran had denied symptoms related to the left knee and/or musculoskeletal system at that time. The examiner also addressed the Veteran scar, stating that "[i]f the scar itself is not associated with disability or pain, there is no mechanism for it [to] cause problems in other joints." In this regard, the Board acknowledges that at the time of the July 1993 periodic Reserve examination, the Veteran was clinically evaluated as normal and also that he indicated no "trick" or locked knee on the accompanying report of medical history. However, it was also noted that the Veteran experienced left knee swelling and pain at times and the Veteran reported having injured his left knee during service. It does not appear as though this evidence was considered by the VA examiner. Furthermore, the Veteran is service connected for a "painful scar" related to his in-service laceration of the left lower anterior tibia and residuals of laceration, left lower anterior tibia. Again, it does not appear that the examiner considered this fact, as the examiner's rationale suggests a belief that the Veteran's scar is not associated with pain. Accordingly, the Board finds that the opinion obtained on remand is inadequate to rely upon in this case. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that it is incumbent on the examiner to consider all of the relevant evidence before forming an opinion); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (opinions based upon an inaccurate history are of little probative value); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that "[a] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two"). The matter must therefore again be remanded. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination, it must provide an adequate one). The Board further notes that by a July 2016 rating action, the Veteran was awarded service connection for neuropathy of the left lower extremity affecting the deep peroneal nerve, and service connection for neuropathy of the left lower extremity, affecting the internal saphenous nerve, both of which were established as related to the service-connected residuals of laceration, left lower anterior tibia. Given the additional award service connection for neuropathies attributable to the Veteran's service-connected of a left lower anterior tibia laceration, the Board finds that on remand, the Veteran should undergo an additional examination of the left knee so as to fully evaluate the nature of his claimed disability. Also, as part of the examination and opinion to be provided on remand, the Board also concludes that another opinion regarding direct service connection is necessary. This is so because the 2012 opinion does not address the fact that at the time of the July 1993 periodic Reserve examination, the Veteran reported experiencing left knee swelling and pain at times. In this regard, the Board notes the existence of a private medical opinion dated in March 2012 that suggests that the Veteran's left knee disability could be related to service. Although the clinician stated that it would be "speculation to assume that the [V]eteran indeed sustained a chronic injury to his left knee," he pointed out that in July 1993, the Veteran reported left knee swelling and pain at time and stated that "the fact that while in service the [V]eteran was experiencing intermittent swelling and pain does indicate a probable internal derangement occurring during his military service." Notably, however, the clinician indicated the Veteran's military service to include his Reserve/National Guard service from 1989 to 1995, in addition to his period of active duty from March 29, 1989, to July 14, 1989. As the clinician did not specifically related the Veteran's current left knee disability to his period of active military service, the private medical opinion cannot serve to establish an award of service connection for the Veteran's left knee disability. This is so because for service connection to be award for any disability resulting from injury or disease incurred during the remainder of the Veteran's service (i.e., outside of his period of active duty), it must be shown that the claimed disability first manifested in or underwent a permanent worsening during a verified period of active duty for training (ACDUTRA) or inactive duty for training, depending on the nature of the claimed disability. See McManaway v. West, 13 Vet. App. 60, 67 (1999) (citing Paulson v. Brown, 7 Vet. App. 466, 469-70 (1995), for the proposition that, if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim"). Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file (in VBMS and Virtual VA) all outstanding, pertinent records. As for VA records, the electronic claims file currently included VA treatment records dated through July 2016. However, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As the record shows that the Veteran is currently being treated the VA medical center in Columbia, South Carolina, the AOJ should obtain from that facility all records of pertinent evaluation and/or treatment of the Veteran since July 2016, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with regard to requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal (particularly as regards private (non-VA) medical treatment), explaining that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2014). But see also 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2015). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Columbia VAMC (and any associated facility(ies)) all outstanding, pertinent records of evaluation and/or treatment of the Veteran since July 2016. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide additional information and, if necessary, authorization, to obtain any additional evidence pertinent to the remaining claims on appeal that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA examination of the left knee by an appropriate physician. The contents of the entire, electronic claims file (in VBMS and Virtual VA), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should reflect full consideration of the Veteran's documented medical history and assertions. In this regard, the examiner must take a detailed history from the Veteran regarding his claimed left knee disability. All indicated tests and studies should be accomplished (with all results furnished to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. Following examination of the Veteran, and review of the record, the examiner should clearly identify current left knee disability other than the neuropathies for which service connection had been awarded, previously characterized as degenerative joint disease. Then, the examiner should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during the Veteran's active duty service from March 29, 1989, to July 14, 1989, or is otherwise medically-related to such service. In addressing the above, the examiner must consider and discuss all in- and post-service medical and other objective evidence, as well as all lay assertions. In particular, the examiner should consider the July 1993 periodic Reserve examination noting the Veteran's complaints of intermittent pain and swelling of the left knee as well as the March 2012 private medical opinion suggesting that such report indicates some internal derangement of the left knee. If the examiner finds that this evidence does not support an award of service connection for a left knee disability, the examiner should clearly so state, and explain why. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports should be specifically acknowledged and considered in formulating opinions. If the Veteran's lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. The examiner is also advised that the absence of evidence of treatment for the claimed disability in the Veteran's service treatment records should not, standing alone, serve as the basis for a negative opinion. If the examiner concludes that it is less likely than not that the Veteran's left knee disability is directly attributable to service, the examiner should provide an opinion, consistent with sound medical principles, as to whether it at least as likely as not .(i.e., a 50 percent or greater probability) that the left knee disability (a) was caused, OR (b) is or has been aggravated (worsened beyond natural progression) by the Veteran's service-connected residuals of a left lower anterior tibia laceration, painful scar due to residuals of lacerations, and/or neuropathy(ies) of the left lower extremity associated with residuals of left lower anterior tibia laceration. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation, to include, to the extent possible, identifying the baseline level of disability prior to aggravation. . 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal in light of all pertinent evidence and legal authority. 7. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative a supplemental SOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999)). (CONTINUED ON NEXT PAGE) This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2015).