Citation Nr: 18156631 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 17-04 693A DATE: December 10, 2018 REMANDED Entitlement to service connection for a shoulder disability is remanded for additional development. Entitlement to service connection for a knee disability is remanded for additional development. Entitlement to service connection for a bilateral foot disability is remanded for additional development. REASONS FOR REMAND The Veteran had active military service with the U.S. Army from August 1980 to August 1983. These matters come to the Board of Veteran’s Appeals (Board) on appeal from a February 2016 rating decision from the Department of Veterans Affairs (VA) regional office (RO) in Louisville, Kentucky. While the Board sincerely regrets the delay, a remand is required before making a determination on the merits of the remaining outstanding claims on appeal. In April 2014, Veteran requested that the VA obtain his SSA file in connection with his disability claims. See April 2014 Authorization for Release of Information (VA Form 21-4142). Unfortunately, the records from the Veteran’s SSA benefits, including his complete application, complete determination, and any records upon which the determination was made, are not yet of record. As such, remand is required to obtain these records and associate them with the claims file before the Board can make a determination regarding the Veteran’s service connection claims. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). As the case must be remanded to obtain the Veteran’s SSA records, the Board has also determined that new VA examinations are warranted with respect to the Veteran’s claims for entitlement to service connection for his current bilateral knees, left shoulder, and bilateral feet disabilities. In this regard, the Veteran maintains that his left shoulder disability first occurred as a result carrying heavy equipment while assisting the machine gunner as part of his active service. He further specifies that his current bilateral knee and feet disabilities first manifested when he was engaged in running and marching exercises as well as rappelling and jumping from helicopters during active service. With respect to the Veteran’s claim for entitlement to service connection for a bilateral knee disability, he underwent a VA knee examination in February 2016. See February 2016 Knee and Lower Leg Conditions Disability Benefits Questionnaire. (DBQ). The examiner opined that the Veteran’s knee disability was less likely than not related to his active service. See February 2016 VA medical Opinion DBQ. In arriving at this conclusion, the examiner stated, “Although I do not have current treatment records for this Veteran, there is no consistent documentation of a knee condition to substantiate a diagnosis of a chronic knee condition.” Id. She further stated, “[t]here is insufficient medical evidence to substantiate a nexus as well,” and noted that there was only one documented episode of acute knee pain in the Veteran’s service treatment records. Id. The examiner also specified that she had not reviewed the Veteran’s claims file, and cited to the Veteran’s VA Medical Center (VAMC) records in making her determination. Id. However, a review of the medical evidence of record reflects that there are additional medical records from 2012 through 2015 from the Kentucky Department of Corrections, where the Veteran is currently incarcerated, documenting the Veteran’s reports of and treatment for knee pain. See, e.g., February 2012 Kentucky Department of Corrections Sick Call Note (reflecting that the Veteran indicated an ongoing issue with his knee giving out); February 2012 Express Mobile Diagnostic Services Final X-ray report (documenting an anterior superior patellar spur on the Veteran’s right knee). Further, the Veteran has submitted lay statements during the pendency of his claim regarding the circumstances during active duty that he believes was when he first incurred his knee condition. See, e.g., December 2015 Statement in Support of Claim (VA Form 21-4138) (reporting that the Veteran asserted that his knee pain was caused by marching, running, jumping, and rappelling while on active service); April 2016 Statement in Support of Claim (VA Form 21-4138) (reflecting that the Veteran asserted he sustained wear and tear on his knees, feet and shoulder as a result of his MOS-related duties). Accordingly, the Board finds that the February 2016 VA opinion regarding the Veteran’s knees to be inadequate, as the examiner did not consider all the relevant lay and medical evidence of record when rendering a determination regarding entitlement to service connection a bilateral knee disability. Once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). An adequate medical opinion with regard to etiology should consist of a thorough review of the claims file and discussion of the relevant evidence (including the disability in question), a consideration of the lay contentions of the Veteran, and clear conclusions with a supporting rationale. Barr, 21 Vet. App. at 311; Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Regarding the Veteran’s claims for entitlement to service connection for a left shoulder disability, the RO denied these claims in its February 2016 decision because “pain in shoulder” and “pain in feet…[are] not considered an actually disabling condition” and because “the evidence does not show a currently diagnosed disability.” See February 2016 Rating Decision. However, the Veteran has put forth competent reports of in-service duties relating to his bilateral feet and left shoulder disabilities. The Veteran is competent to report those symptoms that he experienced while in service. 38 C.F.R. § 3.159(a)(2). Further, lay evidence cannot be found not credible solely due a lack of contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Given the Veteran’s competent contentions, and in light of VA’s duty to assist, the Board finds the evidence of record meets the low threshold of an “indication” that the claimed disability has a causal connection or association with service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (reflecting that VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim). Therefore, on remand, the Veteran should also be afforded an appropriate VA examination for an opinion as to whether his current bilateral feet and left shoulder disabilities are etiologically-related to his active military service. The Board also notes that information obtained by VA in August 2013 shows that the Veteran currently is incarcerated in state prison in Kentucky following a felony conviction with a possible release date in January 2025. See July 2013 Kentucky Online Offender Lookup Print Screen. The duty to assist incarcerated Veterans requires VA to tailor, when possible, its assistance to meet the peculiar circumstances of confinement, as such individuals are entitled to the same care and consideration given to their fellow Veterans. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Bolton v. Brown, 8 Vet. App. 185, 191 (1995). VA does not have the authority to require a correctional institution to release a veteran so that VA can provide him the necessary examination at the closest VA medical facility. See generally 38 U.S.C. § 5711. Nevertheless, VA’s duty to assist an incarcerated veteran includes: (1) attempting to arrange transportation of the claimant to a VA facility for examination; (2) contacting the correctional facility and having their medical personnel conduct an examination according to VA examination work sheets; or (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. See Bolton, 8 Vet. App. at 191. Because the Veteran currently is incarcerated in state prison in Kentucky with an possible release date in January 2025, the Board finds that, on remand, the AOJ should appropriate attempts. The AOJ also should attempt to obtain the Veteran’s updated treatment records, to include any prison medical records which may be available from his period of incarceration. The matters are REMANDED for the following action: 1. Obtain the Veteran’s SSA records and associate them with the claims file. All attempts to secure any identified records and any response received must be documented in the case file. 2. Obtain any additional outstanding treatment records, including prison medical records, for the Veteran and associate them with the claims file. All attempts to secure any identified records and any response received must be documented in the case file. 3. After any available records are associated with the claims file, take all reasonable measures to schedule the Veteran for the examinations requested below. Confer with prison authorities to determine whether the Veteran may be escorted to a VA medical facility for examination or if an examination at the prison is feasible. If that is not possible, then the Veteran may be examined at the prison by: (1) VHA personnel; (2) prison medical providers at VA expense; or (3) fee-basis providers contracted by VHA. 4. Schedule the Veteran for additional VA examinations in the appropriate specialty to determine the nature and etiology of the Veteran’s current 1) left shoulder, 2) bilateral knees, and 3) bilateral feet disabilities. The examinations should include any diagnostic testing or evaluation deemed necessary for each specific claimed disability. The electronic claims file, including a copy of this remand, must be made available for the examiner to review, and notation must be made that this record review took place. The Veteran must be interviewed. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. The examiner must provide a clear explanation for the opinion, to include any comment on any credibility issues raised by the record from a medical perspective. Based upon a review of the entirety of the claims file, the history presented by the Veteran, and the examination results as to each claimed condition, that is: left shoulder, bilateral knees, and bilateral feet disabilities, the examiner is requested to provide an opinion as to the following question: With respect to any identified left shoulder, right knee, left knee, right foot, and left foot disability: Is it at least as likely as not (i.e. a 50 percent probability or greater) that the disability began during, or is otherwise related to the Veteran’s active duty service? The examiner must provide a complete rationale for all opinions expressed. As part of the rationale, the examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Raj, Associate Counsel