Citation Nr: 1808007 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-19 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for left knee degenerative joint disease. 2. Entitlement to service connection for right knee degenerative joint disease. 3. Entitlement to service connection for right ankle degenerative joint disease. 4. Entitlement to service connection for lumbar spine degenerative joint disease. 5. Entitlement to service connection for gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel REMAND The Veteran served on active duty from October 1978 through February 1987, with additional service in the Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans Law Judge at an August 2017 hearing at the RO. A transcript is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. The RO obtained a VA medical opinion in May 2010 to determine the etiology of the Veteran's bilateral knee disabilities, right ankle disability, and GERD. The examiner opined it was less likely than not that the Veteran's disabilities were related to her active duty service. For the Veteran's left knee, the examiner opined that there was no chronicity of symptoms, because the Veteran only reported knee pain once in 1985 and the record did not reflect any further knee complaints until 1999. However, a review of the Veteran's claims file reflects that in January 1999, she reported being hit by a car in February 1988 and that she was treated for knee injuries at Tracy Community Hospital. These 1988 records from Tracy Community Hospital are not part of the record, and, on remand, should be acquired. The Veteran has also consistently stated that her job as a MP was incredibly physically strenuous. The examiner does not appear to have considered the nature of the Veteran's military occupational specialty. The examiner also opined it was less likely than not that the Veteran's GERD was etiologically related to her active duty service because on complete physical examination, she did not complain of an abdominal condition, and she only reported the symptoms once in 1979. A review of the Veteran's service treatment records reflects that the Veteran complained of abdominal pain and vomiting in July 1979, December 1982, April 1985, December 1987, and January 1987. On her August 1999 report of medical history, she reported taking Prilosec. Further, the Veteran reported during her August 2017 Board hearing that she began seeking private treatment for her GERD symptoms in the 1980s. However, the claims file only contains private treatment records beginning in 1996. Finally, the examiner opined it was less likely than not that the Veteran's right ankle disability was etiologically related to her active duty service because she was diagnosed with an ankle sprain in February 1982 with no other complaints of ankle pain. An August 2003 examination report reflected a prior injury to the malleolus with a well corticated ossific body, which may represent an old ununited fracture. The examiner did not discuss the findings of the August 2003 x-ray. For the reasons discussed above, the Board does not find the May 2010 VA medical opinion to be of probative evidentiary value. In August 2017, the Veteran submitted a nexus statement from her treating physician. The physician discussed the Veteran's history of GERD, but did not provide a nexus statement etiologically linking it to her active duty service. Additionally, the physician noted the Veteran sought treatment several times in service for her bilateral knee complaints, and opined it was at least as likely as not that the Veteran's bilateral knee and ankle disabilities were related to the activities and duties she performed while on active duty. However, the record reflects that the Veteran only sought treatment once for her left knee while on active duty, and never complained about her right knee. Further, the physician stated that the Veteran's military duties caused exacerbation of her knee and ankle complaints, she did not say active duty caused the disabilities themselves. Accordingly, the Board finds that there are no adequate medical opinions linking the Veteran's bilateral knee disabilities, right ankle disability, and GERD to her active duty service. Although the Veteran attributes these conditions to service, no medical professional has rendered an opinion on their causes. The Veteran has consistently reported that her lumbar spine disability was caused by the heavy amount of equipment she had to carry while performing her duties as a MP. See May 2014 Statement in Support of Claim and Hearing Transcript at 19. She also reported that she believes her lumbar spine disability is secondary to her altered gait due to her bilateral knee disabilities. See May 2011 Notice of Disagreement and Hearing Transcript at 19. Given the strenuous nature of the Veteran's military occupational specialty, the Board finds she has presented competent, credible evidence that she experienced lumbar spine pain while in service. The Board notes that the Veteran was never afforded a VA examination as to this issue; however, the Board finds that the evidence of record meets the low threshold outlined by McLendon v. Nicholson and such examination is warranted. Finally, during the Veteran's August 2017 Board hearing, she testified that she received Social Security Disability benefits for her bilateral knee disabilities, right ankle disability, lumbar spine disability, and GERD. These records are not contained in the claims file and should be obtained. She also testified that she was a member of the Reserves from 1987 through 2000. It is not clear whether all these records are part of the claims file. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to complete a release so VA can request her records from Tracy Community Hospital dated February 1988 and from any facilities that treated her for her GERD in the 1980s. Any unsuccessful attempts to obtain this evidence should be properly documented in the claims file. 2. Efforts should be made to obtain any outstanding military personnel files and service treatment records that reflect the Veteran's Reserves service from approximately 1987 to 2000. All attempts to obtain these records, along with any negative responses, should be documented in the claims file. 3. Obtain and associate with the claims file all VA outpatient treatment records from the Palo Alto VAMC and Livermore VAMC from September 2014 to the present. 4. Obtain any records from SSA, to include any award of disability benefits and any underlying records used in reaching the determination. All efforts to obtain SSA records should be fully documented, and a negative response must be provided if the records are not available. 5. DO NOT PROCEED WITH THE FOLLOWING INSTRUCTION UNTIL ALL OF THE EVIDENCE LISTED ABOVE HAS BEEN OBTAINED, TO THE EXTENT POSSIBLE. 6. Then, schedule the Veteran for a VA examination to determine the etiology of her right knee degenerative joint disease, left knee degenerative joint disease, right ankle degenerative joint disease, lumbar spine degenerative joint disease, and GERD. The examiner is requested to provide the following opinions: Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's right knee degenerative joint disease, left knee degenerative joint disease, right ankle degenerative joint disease, and GERD are etiologically related to her active duty service. The examiner is referred to the above discussion concerning in-service treatment and the Veteran's contentions about the physical demands of her MOS. Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's lumbar spine degenerative joint disease is etiologically related to her active duty service. The examiner is referred to the above discussion concerning in-service treatment and the Veteran's contentions about the physical demands of her MOS. If not, is it at least as likely as not that the Veteran's bilateral knee and right ankle disabilities caused or aggravated her lumbar spine degenerative joint disease. 7. The AOJ should then readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran and her representative should be provided a supplemental statement of the case. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). _________________________________________________ MICHELLE L. KANE 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).