Citation Nr: 1753592 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 14-06 328 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for torn right Achilles tendon residuals. 4. Entitlement to a total disability evaluation based on individual unemployability (TDIU). WITNESSES AT HEARING ON APPEAL Veteran and his daughter INTRODUCTION The Veteran served on active duty from October 1961 to October 1963 and from December 1963 to April 1969. The Veteran also had time in the Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision and a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The November 2012 rating decision denied entitlement to TDIU. The December 2013 decision denied entitlement to service connection for both knee disorders and a right Achilles tendon disorder. The Veteran testified before the undersigned in a July 2017 hearing, a transcript of which is of record. At the hearing, a motion to advance this matter on the docket due to advanced age was made. The undersigned granted the motion. Given such, the appeal is advanced. 38 U.S.C. § 7107 (a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND The Veteran alleges that he experiences a bilateral knee disorder and residuals stemming from a torn right Achilles tendon as a result of his active service. The Veteran's available treatment records show that he experiences bilateral knee disorders. It is unclear from the available records whether he experiences residuals stemming from a torn right Achilles tendon. Initially, at the July 2017 hearing, the Veteran related that he served in the Air Force Reserve, in the International Guard in Washington, District of Columbia, from 1977 to 1983. The Veteran stated that this included about eight weeks of active duty starting in or about May 1979, when he went to Militia School Lowry Air Force Base in Denver, Colorado. See Hearing Transcript, in VBMS. The Board notes that the Veteran's service personnel records and service treatment records for his Reserves service have not been obtained and associated with the claims file. He testified that he hurt his knees and right Achilles tendon playing volleyball and/or basketball during his time at the Lowry Air Force Base, in addition to previous knee injuries he experienced while on active duty playing football during the Vietnam War period. The Veteran stated that he was on crutches for three weeks after his injury. The Veteran also stated that he had a bilateral knee injury when he served in Cuba in 1961 or 1962, when he fell as he worked in the cafeteria and was on crutches for the injury. See Hearing Transcript, in VBMS. The Veteran has submitted a certificate of training for the completion of training as a munitions maintenance specialist, ending in May 1979. See 16 May 1979 Cert. of Training - Munitions Maintenance, in VBMS. It is unclear whether he was in a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) during his stay at the Lowry Air Force Base. Before proceeding with a decision, the Veteran's duty status during his stay at the Lowry Air Force Base must be verified, and his service department ACDUTRA and/or INACDUTRA records must be obtained. Cahall v. Brown, 7 Vet. App. 232 (1994). Service department records are binding on VA for purposes of establishing service in the United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530 (1992); 38 C.F.R. § 3.203 (2017). Also at the July 2017 hearing, the Veteran named several hospitals and medical centers where he was treated post-service, some VA and some private. He stated that he was treated at George Washington Hospital and Georgetown Hospital, both in Washington, DC, starting after May 1979 for a period of about three years. Then the Veteran obtained medical treatment at the Hampton, Virginia, VA Medical Center (VAMC), then at the Washington, DC, VAMC, and then at the Norfolk VAMC. Upon a thorough review of the file, the Board notes that the Veteran's medical treatment records currently on file are incomplete. The Board cannot adjudicate the Veteran's claims without those records. These records may affect the outcome of all of the Veteran's claims, and thus, the duty to assist obligates VA to obtain them. 38 U.S.C. § 5103A (c) (2012); 38 C.F.R. § 3.159 (c)(1) (2017); see also Loving v. Nicholson, 19 Vet. App. 96, 102 (2005) (noting that the Secretary has a duty to assist in obtaining relevant and adequately identified records); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"); Dunn v. West, 11 Vet. App. 462 (1998). Therefore, the RO/AMC should attempt to obtain any and all VA treatment records from the VA facilities in Hampton, Virginia, Washington, DC, and Norfolk, Virginia. As such, his VA and private treatment records should be obtained. On remand, the Veteran must be asked to supply releases to permit VA to obtain the treatment records from his former private physicians at George Washington Hospital and Georgetown Hospital in Washington, DC, or to submit the records himself (although, as the Veteran mentioned during the hearing, those records may have been destroyed by now). 38 C.F.R. § 3.159 (c)(1) (2017). The Veteran also related that he received Social Security Administration (SSA) disability benefits due to "85 percent arthritis in [his] body." See Hearing Transcript, in VBMS. It is unclear whether the Veteran is currently receiving SSA benefits and, if so, for what disability. The Board notes that the SSA records (if any exist) are not associated with the claims file. Although these records could affect the outcome of all of the Veteran's claims, it does not appear that SSA records were requested or obtained by the RO. Under 38 U.S.C. § 5107 (a), VA's duty to assist specifically includes requesting information from other federal departments or agencies. In light of above, the Board concludes that the RO/AMC should attempt to obtain a copy of the SSA records, including any decisions and any treatment records upon which those decisions were based. See generally Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). As for the TDIU claim, a November 2012 rating decision increased the Veteran's disability evaluation for hypertensive heart disease with left ventricular hypertrophy with hypertension to 60 percent, and his disability evaluation for posttraumatic disorder to 50 percent. No VA examiner has yet opined on the issue of TDIU since the November 2012 increases. Such an opinion should be obtained. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Ask the Veteran to submit any evidence he has which shows his duty status during May 1979, to include copies of any orders or other service personnel records, or annual point summaries for 1979. 2. Contact the appropriate source(s) to verify Veteran's actual periods of ACDUTRA and/or INACDUTRA for May 1979. Obtain and associate with the claims file a point credit summary that breaks down the duty codes and the specific dates to which those duty codes apply. Obtain any service medical records for that period. 3. Obtain and associate with the claims file all of the Veteran's outstanding VA treatment records, to specifically include those from the VA facilities in Hampton, Virginia, Washington, DC, and Norfolk, Virginia. All actions to obtain the requested records should be documented fully in the claims file. 4. After obtaining the appropriate authorization(s) from the Veteran and identifying his past and current private medical treatment providers, obtain and associate with the claims file all of the Veteran's outstanding private treatment records. This should include any outstanding treatment records from George Washington Hospital and Georgetown Hospital in Washington, DC. All actions to obtain the requested records should be documented fully in the claims file. In the alternative, the Veteran himself should attempt to obtain these records to expedite his case. 5. Obtain and associate with the claims file any decision(s) concerning disability benefits from the SSA, to include the treatment records on which that decision was based. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of these records. 6. Once all outstanding records have been obtained and associated with the claims file, (but whether or not records are obtained), schedule the Veteran for a VA examination with an examiner qualified to assess the nature and etiology of any existing bilateral knee disorders. The examiner must review the claims file and should note that review in the report. All appropriate tests should be conducted. The examiner should provide a rationale for any opinions expressed and reconcile any opinion with all pertinent evidence of record, including the service medical records, post-service private medical records, and VA treatment records. The examiner must consider the Veteran's lay statements regarding the incurrence of the claimed disability and the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examiner must provide the following opinions: a) Diagnose all current bilateral knee disorders. b) Opine whether it is at least as likely as not (50 percent or more probability) that any current knee disorder(s) is the result of any injury during active service, ACDUTRA and/or INACDUTRA, or was aggravated (made permanently worse by) by the Veteran's active service or any periods of ACDUTRA. c) Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination must record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and non-weight-bearing. If the knees cannot be tested on "weight-bearing," then the examiner must specifically indicate why that testing cannot be done. d) The examiner must also express an opinion whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the veteran, to what extent, if any, such flare-ups affect functional impairment. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. e) The examiner should also obtain a detailed clinical history from the Veteran and provide a thorough account and analysis of the manner in which the Veteran's knee disorders affect him in his everyday life, particularly the impact that they have on the Veteran's ability to secure and follow a substantially gainful occupation. 7. If the outstanding medical records show that the Veteran experiences any residuals stemming from a torn right Achilles tendon AND that he experienced a torn right Achilles tendon during a period of ACDUTRA, the Veteran should also be examined for that disorder. a) Diagnose all current residuals stemming from a torn right Achilles tendon. b) Opine whether it is at least as likely as not (50 percent or more probability) that any current right Achilles tendon disorder(s) is the result of any injury during active service, ACDUTRA and/or INACDUTRA, or was aggravated (made permanently worse by) by the Veteran's active service or any periods of ACDUTRA. 8. Schedule the Veteran for a VA examination with an appropriate examiner to determine whether the Veteran's service-connected disabilities (to include hypertensive heart disease with left ventricular hypertrophy with hypertension and PTSD) either alone or in concert, have precluded him from engaging in substantially gainful employment. 9. Then, review and readjudicate the claims. If the benefits sought are not granted, furnish the Veteran and his representative a supplemental statement of the case (SSOC), and afford them an opportunity to respond. Then, return the case to the Board for further appellate review. 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). _________________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD A.Lech, Counsel Copy mailed to: Virginia Department of Veterans Services Under 38 U.S.C. § 7252 (2012), 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) (2017).