Citation Nr: 1808187 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-29 500 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Mary M. Long, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Y. Lee, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Army from August 1979 to July 1982. He also had honorable active duty service with the United States Air Force from June 2002 to September 2002, and from May 2003 to August 2003. The Veteran had intervening and subsequent service in the Air Force Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied, in pertinent part, claims for service connection for a back condition and a bilateral knee condition. In September 2014, the Veteran testified at hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's electronic claims file. In June 2015, the Board remanded the Veteran's claims for further evidentiary development. The issues are now before the Board again. The Board notes that at the time of the Board remand, the claims for service connection for a bilateral foot disability, a left hand disability, a left knee condition, and posttraumatic stress disorder (PTSD) were also before the Board. Subsequent to the June 2015 Board remand, in an April 2016 rating decision, the RO granted service connection for a bilateral foot disability, a left hand disability, left knee strain, and PTSD. As such, these issues are not before the Board, and the remaining issues have been recharacterized accordingly on the title page. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The June 2015 remand instructed the RO to arrange for an exhaustive search to locate the Veteran's outstanding service treatment records during his second and third periods of active duty service (i.e., between June and September 2002, and between May and August 2003). The Board finds that it does not appear that these records have been associated with the record. Furthermore, no formal finding of unavailability has been noted in the record; thus, the records are still outstanding and they must be obtained on remand (or their unavailability noted for the record, in which case the Veteran must be informed according to appropriate procedures). Furthermore, in accordance with the June 2015 remand, the Veteran was provided VA examinations to determine the nature and likely cause of his back and right knee disabilities. In November 2015, a VA examination was conducted for each claimed disability on appeal. In both of the VA examination reports, the examiner noted that at the time of the examinations, the Veteran's claims file included service treatment records from his first period of active duty; thus, the records from the Veteran's second and third periods of active duty were not considered in the examiner's opinions for both the back and right knee disabilities. With regard to the back disability, the examiner opined that the Veteran's claimed back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that after reviewing the service medical record, there was no evidence on this issue. In the separate VA examination for the Veteran's right knee condition, similar to the opinion provided for the back, the examiner opined that the Veteran's right knee disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Again, the examiner based his opinion on his review of the service medical record, which did not provide any evidence on the issue for the right knee. As the service treatment records during the Veteran's second and third periods of active duty have not been associated with the record, and no formal finding of unavailability has been noted in the record, the Board finds that the November 2015 VA examiner potentially formulated his opinions with regard to the nature and etiology of the Veteran's claimed back and right knee disabilities on an incomplete record. Therefore, after completion of further development with regard to the Veteran's service treatment records during his second and third periods of active duty, the Board finds that a VA medical addendum opinion is required for both claimed disabilities on appeal. In addition, on remand, the AOJ should make appropriate efforts to ensure that all relevant outstanding private and VA treatment records are associated with the claims folder. If possible, the Veteran should get these records himself to expedite the case. Accordingly, the case is REMANDED for the following action: 1. Obtain relevant prior and ongoing private and/or VA treatment records related to the Veteran's treatment of his claimed back and right knee disabilities. All actions to obtain the requested records should be fully documented in the claims file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. Again, if possible, the Veteran should submit these records himself, and any new records regarding treatment of this disability that VA does not have. 2. The AOJ should make a final attempt to obtain all service personnel, and service treatment records, covering the Veteran's second and third periods of active duty service (i.e., between June and September 2002, and between May and August of 2003). All efforts should be continued to locate those records until it is reasonably certain that such records do not exist, or that further efforts to obtain those records would be futile. Thereafter, a formal written unavailability memorandum must be added to the claims file, and the Veteran must be so notified, and provided with an opportunity to respond or provide the records. 3. After the above development is complete, return the claims file to the VA examiner who conducted the November 2015 examination for both the back and right knee. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If the November 2015 examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. The examiner is asked to provide an opinion as to the following: (a) Identify all current back disabilities associated with the Veteran. (b) Is it at least as likely as not (a probability of 50 percent or greater) that any identified back disability manifested during, or as a result of, active military service? (c) Identify all current right knee disabilities associated with the Veteran. (d) Is it at least as likely as not (a probability of 50 percent or greater) that any identified right knee disability manifested during, or as a result of, active military service? A full rationale must be provided for any opinion offered. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and indicate what additional evidence, if any, would allow for a more definitive opinion. 4. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claims. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter or 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 (West 2014). JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2014), 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).