Citation Nr: 18140758 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 16-60 511 DATE: October 5, 2018 REMANDED Entitlement to service connection for a bilateral knee disorder, status bilateral knee replacements, is remanded. Entitlement to service connection for bladder disease to include cancer that metastasized from the prostate is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Navy from September 1963 to August 1967. In September 2017 the Board remand the claim of service connection for a back disability. However, the Board finds that this issue is no longer in appellate status because the regional office (RO) in October 2017 granted service connection for a back disability. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997) (holding that the RO's award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by the veteran's notice of disagreement on such issue). Next, the record shows that the RO in June 2017 issued a statement of the case (SOC) as to the denial of the Veteran’s claim of service connection for bilateral lower extremity radiculopathy and in August 2017 issued as SOC as to the denial of his claim for adaptive equipment. However, the Board finds that these issues are not in appellate status because the RO in September 2018 granted service connection for bilateral lower extremity radiculopathy (see Grantham, supra.) and the Veteran did not perfect his appeal as to the denial of his claim for adaptive equipment by filing a substantive appeal (see 38 C.F.R. §§ 20.200, 20.302(c) (an appeal requires a notice of disagreement and a timely filed substantive appeal after issuance of a statement of the case)). In April 2018, the Veteran testified at a video hearing before the undersigned and a transcript of that hearing has been associated with the record. Given the personal hearing testimony, the Board has recharacterized the Veteran claim of service connection for bladder disease to include the prostate cancer he testified about that metastasized to cause his bladder cancer so as to best reflect his intent when filing the current appeal. Entitlement to service connection for a bilateral knee disorder and bladder disease are remanded. Initially, the Board notes that most of the Veteran’s service treatment records are lost. Therefore, where, as here, “service medical records are presumed destroyed,... the Board’s obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt is heightened.” O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The cases, however, do not establish a heightened “benefit of the doubt,” but rather only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when the veteran’s medical records have been destroyed. The case law does not lower the legal standard for proving a claim for service connection but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. Russo v. Brown, 9 Vet. App. 46 (1996). Tellingly, at his April 2018 hearing the Veteran testified about, among other things, potentially relevant record that have not been associated with the claims file. Specifically, as to his bilateral knee disabilities, the Veteran testified that he was transferred to and had in-patient treatment at a San Diego Naval Hospital for his bilateral knee injuries, to include having surgery. Tellingly, service personnel records show he spend 124 days hospitalized at a San Diego Naval Hospital. However, while some treatment records San Diego Naval Hospital were obtained by the RO as part of its general request for the Veteran’s service treatment records, the record does not show that the agency of original jurisdiction made a specific request for these hospitalization records. Likewise, the Veteran testified that after obtaining his Physicians’ Assistant degree immediately after service he spent the first 12 post-service years working for a group of orthopedic doctors where he also received treatment for his knee problems. However, neither a request for these records or the records themselves appear in the claims file. Lastly, the Veteran testified that he received post-service treatment for his bilateral knee disabilities from Kaiser Permanente, including knee replacement surgeries in 2004 and 2007. Moreover, a review of the record on appeal reveals some of his treatment records from Kaiser Permanente. However, it does not appear to the Board that the 31 pages of records it sees in the claims file represents all of his records. Therefore, the Board finds that a remand is required to attempt to obtain and associate with the record these missing records. See 38 U.S.C. § 5103A(b); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them). As to the claims of service connection for bilateral knee disabilities, given the Veteran’s current diagnoses, the Veteran’s competent and credible testimony regarding an in-service injury (i.e., a fall down a ladder) and observable symptoms (i.e., knee pain) following that injury as well as shortly after service, and the fact that the RO granted the appellant service connection for a back disability due to the same in-service injury, the Board also finds that while the appeal is in remand status the claimant should be provided a VA examination to obtain a needed medical opinion as to the origins or etiology of his bilateral knee disabilities. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 84-86 (2006). As to the Veteran’s claim of service connection for bladder disease, the Veteran testified that part of his duties serving as a corpsman was working on medivac helicopters that took injuries soldiers to medical facilities in the Republic of Vietnam and in this capacity he stepped foot in the Republic of Vietnam on many occasions. Tellingly, service records show that the Veteran served on the U.S.S. Tortuga (LSD-26) as a corpsman and the ship sailed in the waters off of the Republic of Vietnam from April 16, 1966, to September 15, 1966. Moreover, a memorandum prepared by the Veterans' Administration based on information provided by the Department of Defense, lists the U.S.S. Tortuga (LSD-26) as a ship that served in the in-land waterways of the Republic of Vietnam during the time the Veteran was stationed on the ship. Therefore, the Board finds that Veteran’s service includes qualifying service in the Republic of Vietnam during the Vietnam War Era and the herbicides presumptions found at 38 C.F.R. §§ 3.307, 3.309(e) apply to the current appeal. In this regard, the prostate cancer that the Veteran reported caused his bladder cancer is a presumptive disease related to herbicide exposure and VA must consider if his bladder disease was caused by his prostate cancer. See 38 C.F.R. §§ 3.307, 3.309(e). Moreover, VA must also consider if the Veteran is entitled to service connection for his bladder disease on a direct basis and this adjudication must presume his having herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Therefore, given the Veteran current diagnosis (bladder tumor) (see, e.g., CarolinaEast Medical Center record dated in November 2015), the Board finds that a remand is required to provide the Veteran with a VA examination to ascertain the primary cite of his bladder disease as well as the etiology of his bladder disease if the primary cite was not his prostate. See 38 U.S.C. § 5103A(d); McLendon, supra. Given the Veteran’s ongoing treatment, while the appeal is in remand status any outstanding medical records should be obtained and associated with the record on appeal. See 38 U.S.C. § 5103A(b). The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding in-patient clinical records from the San Diego Naval Hospital dated from September 1963 to August 1967. Because these are Federal records, efforts to obtain them should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain them would be futile. If the records cannot be located or no such records exist, a Memorandum of Unavailability documenting all of VA’s actions to obtain the records should be prepared and associated with the claims file and the Veteran should be notified in writing that the records cannot be found. 2. Obtain authorizations from the Veteran and/or his representative to obtain and associate with the record the private treatment records from the orthopedists the appellant he worked for shortly after service, all of his records from Kaiser Permanente, including surrounding the knee replacement surgeries in 2004 and 2007, and any other outstanding private treatment records. If possible, the Veteran himself should obtain and submit the pertinent evidence cited above. Any help would be of great assistance. If the records cannot be located or no such records exist, a Memorandum of Unavailability documenting all of VA’s actions to obtain the records should be prepared and associated with the claims file and the Veteran should be notified in writing that the records cannot be found. 3. Obtain and associate with the claims file any outstanding VA treatment records. 4. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the etiology of his bilateral knee disabilities. All studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: a. Provide an opinion as to whether either current knee disability is at least as likely as not (50 percent or greater probability) causally related to his active service. b. Provide an opinion as to whether arthritis in either knee manifested in the first post-service year. In providing answers to the above questions, the examiner should also consider the Veteran’s competent claims regarding observable symptomatology because of his medical training. In providing answers to the above questions, the examiner is advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the etiology of his bladder disease. All studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: a. Provide a diagnosis for all bladder diseases including cancer. b. If the Veteran’s bladder tumor is cancer, provide an opinion as to the primary cite of the bladder cancer to include whether it metastasized from the prostate. c. If the bladder cancer did not metastasize from the prostate, provide an opinion as to whether any other bladder disorder is at least as likely as not (50 percent or greater probability) causally related to his active service. d. Provide an opinion as to whether bladder cancer manifested in the first post-service year. In providing answers to all the above questions, the examiner must presume the Veteran had herbicide exposure in the Republic of Vietnam. In providing answers to the above questions, the examiner should also consider the Veteran’s competent claims regarding observable symptomatology because of his medical training. In providing answers to the above questions, the examiner is advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel