Citation Nr: 1801676 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-22 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army National Guard from January 1978 to May 1978 and from November 1989 to February 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2013 rating decision of the Columbia, South Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2017, the Veteran presented sworn testimony during a Video-Conference Board hearing in Columbia, South Carolina, which was presided over by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Regrettably, a remand is necessary for further evidentiary development. There is additional medical evidence which should be collected and VA examinations for the Veteran's bilateral knee and low back disabilities. Outstanding Private Medical Evidence The Veteran testified in May 2017 that he received only private medical treatment; he further testified that he has received treatment from "Dr. Grunski [from colonial family practice]" [phonetic]. The Veteran subsequently submitted a request to collect medical documents in May 2017 as of yet no action has been undertaken on this request. While there is a single page of medical records attached to the request, there is no indication that a request was made to the private medical provider. Additionally, the Veteran in December 2017 submitted a request to collect VA medical records from 2017 from the W. J. Bryan Dorn VA Medical Center and the Colonial Family Practice. Before adjudication can proceed, the appropriate measure should be undertaken to collect these documents. See 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159 (2017) Outstanding Service Treatment Records The Veteran testified in his May 2017 hearing that he first injured his back and knees while on active duty for training in 1982. The Veteran had two period of National Guard service one in New Jersey, the other in South Carolina. While service treatment records from the Veteran's National Guard service in South Carolina were collected, the records from the Veteran's earlier New Jersey service have not been collected. The AOJ requested the records from the Record Management Center (RMC) as documented in a May 2017 VA Memo; however, it does not appear that a similar request was sent to the Veteran's New Jersey National Guard unit. The Board finds that such an effort should be undertaken before adjudication of the Veteran's claims can proceed. See 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159 (2017) Medical Examinations Warranted The United States Court of Appeals for Veterans Claims (Court) has held that a medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. The third element could be satisfied by competent evidence showing post-service treatment for a condition or other possible association with military service. 38 C.F.R. § 3.159(c)(4). The threshold for establishing the third element is low for there need only be evidence that "indicates" that there "may" be a nexus between the current disability and military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the Veteran's low back and bilateral knee disabilities, the Veteran currently has a diagnosis of degenerative joint disease of the bilateral knees and lumbar spine as noted in a May 2017 private treatment note. The Veteran testified in May 2017 that in service he suffered injuries to his back and knees, and he continued to suffer from these injuries up until the current time. Thus, the Board finds that the Veteran should be afforded VA examinations to determine if the Veteran's complaints regarding his lumbar spine and bilateral knees are related to his service. Accordingly, the case is REMANDED for the following action: 1. The AOJ should ensure that all service treatment records and service hospital records from all periods of verified active duty service have been associated with the claims file. In particular, the AOJ should contact the Veteran's both the Veteran's National Guard Unit the 2nd 113 Infantry in New Jersey and the National Guard unit 151 Artillery and request any service treatment records in their possession. The Veteran testified that he was in the New Jersey National Guard 2nd 113 Infantry from 1978 to 1989 and the South Carolina Sumter National Guard from 1989 to 2005. 2. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. In particular, the Veteran should be notified that the Board is particular interested in any records from the Veteran's private medical treatment from January 2015 to present and VA treatment records from the Dorn VAMC from January 2017 to present. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 3. After the above development is completed, Schedule the Veteran for an appropriate VA examination(s) with an appropriate VA examiner(s) to identify any lumbar spine and/or bilateral knee disabilities, to include degenerative joint disease of the lumbar spine and bilateral knees, and their etiology(s). The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All studies, tests, and evaluations should be performed as deemed necessary by the examiner, and the results of any testing must be included in the examination report. The examiner(s) should review the service treatment records (STRs), any post-service records contained in the claims file, and take a detailed history from the Veteran regarding the onset of bilateral knee and low back symptoms and any continuity of symptoms since that time. (A). After considering the pertinent information in the record in its entirety, the VA examiner should identify any low back disability to include degenerative joint disease of the low back. The examiner is asked to opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that any low back disability was incurred or aggravated by his active duty. The examiner should discuss the Veteran's statements on the onset and continuity of his symptoms and is reminded that the focus on the inquiry is not treatment for said condition but symptoms. (B). After considering the pertinent information in the record in its entirety, the VA examiner should identify any bilateral knee disabilities, to include arthritis. The examiner is asked to opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that any bilateral knee disability was incurred or aggravated by his active duty. The examiner should discuss the Veteran's statements on the onset and continuity of his symptoms and is reminded that the focus on the inquiry is not treatment for said condition but symptoms. For any negative opinion, the examiner must identify the medical reasons as to why the evidence does not provide sufficient proof of a relationship between the Veteran's current identified disabilities and his period of military service. 4. Ensure that the examination reports comply with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 5. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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).