Citation Nr: 1805514 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 12-08 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a bilateral hip disability. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for a left knee disability. 5. Entitlement to a disability rating in excess of 10 percent for laparoscopic cholecystectomy with scars. 6. Entitlement to a disability rating in excess of 10 percent for status post fasciotomy. 7. Entitlement to a disability rating in excess of 10 percent for scar, status post fasciotomy. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Pelican, Counsel INTRODUCTION The Veteran served on active duty in the Marine Corps from March 2003 to June 2005, and was awarded the Global War on Terrorism Service Medal, among other decorations. This case comes before the Board of Veterans' Appeals (the Board) from an April 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Pursuant to the Veteran's request, a videoconference hearing before a member of the Board was scheduled for September 2017. However, the Veteran did not report to the hearing. Under these circumstances, the regulations consider the hearing request to have been withdrawn. 38 C.F.R. § 20.704(e) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Preliminarily there appear to be outstanding records. The Veterans Appeals Control and Locator System (VACOLS) shows that the Veteran attended a formal RO hearing on July 19, 2017. However, a transcript of this proceeding has not been associated with the claims file. On remand, the RO should locate the transcript or informal report of this hearing and associate it with the claims file, or state whether the VACOLS entry is in error. Additionally, the March 2012 Statement of the Case indicated that records from VA Medical Center (VAMC) Tuscaloosa from April 2010 to January 2012 and from VAMC Biloxi from January 2007 to December 2008 were electronically reviewed. However, records corresponding to these periods do not appear to have been associated with the claims file. On remand outstanding VA medical records, to include for the aforementioned periods, should be obtained. The Veteran seeks service connection for disabilities of the back, bilateral hips, and bilateral knees, which he asserts were caused or aggravated by his service-connected left leg fasciotomy. See March 2010 claim. However, in a December 2017 submission, the Veteran indicated he also sought service connection for these conditions on a direct basis. See December 2017 Appellate Brief. The Veteran was afforded a VA examination for these claimed disabilities in July 2010, which addressed the relationship of the Veteran's claimed disabilities to his service-connected left leg fasciotomy. The causation opinions for the claimed disabilities addressed the in-service surgery, but did not address whether the Veteran's current fasciotomy disability caused or aggravated the claimed disabilities. Additionally, none of the opinions addressed whether the Veteran's claimed disabilities were directly related to service. Thus, additional clarification is required. On this point, the Board observes that the Veteran's service treatment records contain notations regarding his back and knees; however, no references to the Veteran's hips were evident. With respect to the Veteran's increased rating claims, in a December 2017 submission, the Veteran and his representative asserted that his disabilities had increased in severity since his September 2016 examinations. See December 2017 Appellate Brief, pg. 2. In light of the outstanding records and the Veteran's assertion of worsening, a remand is warranted to afford the Veteran contemporaneous examinations. Accordingly, the case is REMANDED for the following actions: 1. Locate the transcript or any other documentary evidence of the Veteran's July 2017 RO Formal Hearing, and associate it with the record. If it is determined that there is no documentary evidence of the RO Formal Hearing, or that the Formal Hearing did not occur, a finding to that effect must be made in the claims file. 2. Take appropriate action to obtain VA treatment records not already of record relating to the Veteran's claimed disabilities, to include from VAMC Tuscaloosa from April 2010 to January 2012, from VAMC Biloxi from January 2007 to December 2008, and for all VA facilities since September 2016. If VA is unable to obtain these records, the Veteran must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 3. Following the completion of the foregoing development forward the claims file to an appropriate physician for an addendum opinion. If the physician determines that the Veteran should be provided another VA examination, one should be scheduled. The physician should review the entire claims file, to include this remand, and respond to the following: a. Is it at least as likely as not (a probability of 50 percent or greater) that the Veteran's lumbar disc disease is caused by or related to service, to include the Veteran's March 2003 diagnosis of lumbar strain. b. Is it at least as likely as not (a probability of 50 percent or greater) that the Veteran's lumbar disc disease is due to or caused by the Veteran's service-connected status post fasciotomy of the left leg. c. Is it at least as likely as not (a probability of 50 percent or greater) that the Veteran's lumbar disc disease is aggravated (any increase in disability) beyond the natural progress by the Veteran's service-connected status post fasciotomy of the left leg. If aggravation is found, the examiner is asked to address the following issues to the extent feasible: 1) the baseline manifestations of the lumbar disc disease, and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the Veteran's service-connected status post fasciotomy of the left leg. d. Is it at least as likely as not (a probability of 50 percent or greater) that the Veteran's mild right hip strain and left hip bursitis are caused by or related to service. e. Is it at least as likely as not (a probability of 50 percent or greater) that the Veteran's mild right hip strain and left hip bursitis are due to or caused by the Veteran's service-connected status post fasciotomy of the left leg. f. Is it at least as likely as not (a probability of 50 percent or greater) that the Veteran's mild right hip strain and left hip bursitis are aggravated (any increase in disability) beyond the natural progress by the Veteran's service-connected status post fasciotomy of the left leg. If aggravation is found, the examiner is asked to address the following issues to the extent feasible: 1) the baseline manifestations of the mild right hip strain and left hip bursitis, and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the Veteran's service-connected status post fasciotomy of the left leg. g. Is it at least as likely as not (a probability of 50 percent or greater) that the Veteran's right and left chronic knee strain is caused by or related to service, to include the Veteran's April 2003 documented left knee pain and diagnosis of iliotibial band strain, and July 2003 documented right knee pain and diagnosis of iliotibial band strain. h. Is it at least as likely as not (a probability of 50 percent or greater) that the Veteran's chronic right and left knee strain is due to or caused by the Veteran's service-connected status post fasciotomy of the left leg. i. Is it at least as likely as not (a probability of 50 percent or greater) that the Veteran's chronic right and left knee strain is aggravated (any increase in disability) beyond the natural progress by the Veteran's service-connected status post fasciotomy of the left leg. If aggravation is found for any of the claimed disabilities, the examiner is asked to address the following issues to the extent feasible: 1) the baseline manifestations of the chronic right and left knee strain, and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the Veteran's service-connected status post fasciotomy of the left leg. The rationale for all opinions expressed must be provided. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 4. Next, afford the Veteran a VA muscle examination and VA scars examination to determine the severity of his service-connected status post laparoscopic cholecystectomy, status post fasciotomy, and scar left lower extremity. The claims file should be reviewed by the examiner, to include this remand, and the examiner should indicate that such review has occurred. The examiner should provide a detailed review of the Veteran's history, current complaints, and the nature and extent of his status post fasciotomy. The examiner should then provide an opinion as to whether the status post fasciotomy is best characterized as slight, moderate, moderately severe, or severe. If the examiner finds that there has been a noticeable change in severity of the Veteran's symptomatology between 2009 and the present, the examiner should to the extent possible identify the date on which the change occurred. A complete rationale should be given for any rendered opinion. 5. Review the examination reports to ensure they comply with the Board's remand directives. Any inadequacies should be addressed prior to recertification to the Board. 6. After ensuring that the requested actions are completed, the AOJ should conduct any other development actions deemed warranted and readjudicate the claims on appeal. If any benefit sought is not fully granted, the AOJ must furnish a Supplemental Statement of the Case before the claims file is returned to the Board, if otherwise in order. 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. §§ 5109B, 7112 (2012). _________________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals 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).