Citation Nr: 1754472 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-17 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a right leg disability. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. S. Mahoney, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In March 2017, the Veteran testified before the undersigned Veterans Law Judge. A hearing transcript is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran asserts that his right knee and leg disabilities had their onset in service. Specifically, he testified that his knee and leg symptoms began while he was in basic training, in which he experienced pain, aching, radiating knee joint pain, and burning sensations throughout his leg with activity, and that such symptoms have continued since separation. He reported that as a result of his right knee and leg disabilities he was unable to pass basic training and had to repeat it. The Veteran has not yet been afforded a VA examination, and the duty to obtain one is triggered. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As the Veteran asserts that he is unemployable as a result of his right knee and leg disabilities, his entitlement to a TDIU is inextricably intertwined with the instant appeal and must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Any outstanding VA and private treatment records should also be secured. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding pertinent private treatment records. 3. Then schedule the Veteran for a VA examination to determine the nature and etiology of his right knee and leg disabilities. The entire claims file should be made available to the examiner. All indicated studies should be performed, and all findings should be reported in detail. Following a review of the claims file, the examiner is asked to address the following: (a) If a right leg length discrepancy is diagnosed, please determine whether such diagnosis is a developmental defect or a developmental disease. For VA purposes, a defect differs from a disease in that the former is more or less stationary in nature while the latter is capable of improving or deteriorating. (b) If the diagnosed right leg length discrepancy is determined to be a congenital or developmental defect, please opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran incurred any superimposed disease or injury on such congenital defect during his military service that resulted in additional disability. If so, please describe the resultant disability. (c) If the Veteran's right leg length discrepancy is determined to be a congenital or developmental disease, please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disease was aggravated (permanently worsened beyond the normal progress of the disease) by the Veteran's period of active service. Please support your opinion with a robust rationale. (d) If a diagnosed right leg length discrepancy does not have a congenital origin, is there clear and unmistakable (obvious or manifest) evidence that such disability pre-existed service? (e) If the answer to question (d) is yes, is there clear and unmistakable (obvious or manifest) evidence that such preexisting disability DID NOT increase in severity beyond the natural progression of the disability during service (i.e., the disability was not aggravated by service)? (f) If the answer to questions (d) and (e) is "no," then is it at least as likely as not (a 50 percent probability or greater) that any diagnosed right leg length discrepancy had its onset in or is otherwise related to the Veteran's active duty service? (g) Is it at least as likely as not (a 50 percent probability or greater) that any currently diagnosed right knee disability had its onset in or is otherwise related to the Veteran's active duty service? In addressing these questions, please consider the Veteran's testimony as to symptoms from service (first noticing right leg burning pain from the knee to the ankle in basic training that continued throughout service, being on his feet continuously as a cook, feeling a burning in his leg and joints pains without seeking treatment, radiating knee joint pain, and burning sensations throughout his leg with activity), as well as his reports of continuity of symptomatology. Please provide a complete rationale with consideration to the Veteran's reports. If you reject the Veteran's reports, please provide a reason for doing so (i.e. contemporaneous clinical findings that are inconsistent with the Veteran's reports of previous injury) and explain such a determination. Please do not solely rely on an absence of contemporaneous medical treatment to reject the Veteran's reports. However, you may consider inherent plausibility and inconsistency with current clinical observations. If you determine that you cannot provide an opinion without resorting to speculation, please explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, please comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 4. Then, after taking any additional development deemed necessary, readjudicate the claims, to include the Veteran's entitlement to a TDIU. The Veteran 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 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). _________________________________________________ S. BUSH 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) (2017).