Citation Nr: 1825945 Decision Date: 04/27/18 Archive Date: 05/07/18 DOCKET NO. 14-27 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for left knee strain. 2. Entitlement to service connection for a left shoulder disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Bristow Williams, Associate Counsel INTRODUCTION The Veteran served on active duty Army from June 1973 to June 1977. This case comes before the Board of Veterans' Appeals (the Board) from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Jurisdiction is now with the RO in Honolulu, Hawaii. The Board notes the Veteran requested a hearing in his June 2014 VA Form 9. He was scheduled for a Travel Board Hearing in September 2015. Notice of the hearing was sent on August 19, 2015, and reminder notice was sent on September 11, 2015. On the date of the hearing, the RO contacted the Veteran to inquire as to whether he would be appearing at the hearing as he had not yet arrived. See September 2015 Report of General Information. The Veteran stated that he had not received notification of the hearing; however, he stated that he would not be appearing and would speak to his representative for further assistance. Id. The Veteran has not requested a new hearing to date. Therefore, the Board finds the Veteran's hearing request to be deemed withdrawn. See 38 C.F.R. § 20.702(d); 20.704(d) (2017). These matters were previously before the Board in July 2016 at which time they were remanded for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board notes that additional VA treatment records from the VA Medical and Regional Office Center (VAMROC) in Honolulu, Hawaii, were added to the Veteran's electronic claims file in March 2017 and contain evidence that was not previously part of the claims file. These records were not reviewed by the RO at the time of the August 2016 Supplemental Statement of the Case (SSOC) and no subsequent SSOC was issued. This evidence is pertinent to the issues on appeal, and a waiver of initial review has not been received. Therefore, a remand is required to allow the AOJ to review the new evidence in relation to the Veteran's claims. 38 C.F.R. § 20.1304 (2017). See also 38 C.F.R. § 19.37(b) (2017). Additionally, the VA treatment records are VA-generated evidence not submitted by the Veteran or his representative and the automatic waiver provision of 38 U.S.C. § 7105(e) does not apply. In its July 2016 decision, the Board found that the June 2014 VA examination was incomplete, in that it did not contain a nexus opinion with regard to the Veteran's left shoulder disability. In the remand directives, the Board directed the AOJ to obtain an addendum medical opinion that addressed nexus. In July 2016, the same examiner that conducted the June 2014 VA examination opined that there was no evidence of a nexus or connection between the claimed left shoulder dislocation during service and the current symptoms reported by the Veteran and current X-ray findings (of degenerative disease) as these conditions were separate and unrelated diagnoses. She stated that, per the Veteran's statements, his left should dislocations occurred three times during basic training and relocated on their own without ever being seen or documented by medical and that there was no objective evaluations to confirm the Veteran's self-diagnosis. Additionally, she stated that there should be a record of a resulting chronic disability during service or evidence of continuity of symptoms after service. The Board finds that the examiner's July 2016 opinion is not a sufficient basis on which to determine whether any diagnosed left shoulder condition is related to the Veteran's active service. The examiner based her opinion solely on the lack of contemporaneous treatment records. The mere fact that medical records do not establish an injury in-service or chronicity after service is not, in and of itself, a sufficient basis on which to rest a medical conclusion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009), quoting Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). The examiner did not consider the lay reports of injury in service or of left shoulder pain since the in-service event. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion.) Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment and evaluation records. All records received should be associated with the claims file. 2. Then, forward the Veteran's claims file to an appropriate medical professional, who, if possible, has not previously participated in the Veteran's care, for the preparation of a medical opinion. The examiner shall review the Veteran's claims file, and review any additional treatment records associated with the claims file since the last examination and revisit all prior opinions provided. The Veteran should be scheduled for a new VA examination only if the examiner deems it necessary in order to render his or her opinion. The examiner is asked to address the following questions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's current left shoulder disorder began during or is causally related to his military service? In answering this question, the examiner must consider and address the Veteran's lay statements regarding his left shoulder dislocating three times during basic training. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's current left knee disorder began during or is causally related to his military service? In answering this question, the examiner must consider and address the February 1974 service treatment record that states the Veteran complained of knocking in the left knee and reported a history of knee injury, as well as the clinician's report that the popliteus lateral tendon felt as if it was moving over a bony fibular prominence. 3. Then, readjudicate the appeal. If any benefit sought is not granted in full, furnish the Veteran and his representative with a supplemental statement of the case and return the case to the Board. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 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).