Citation Nr: 21001231 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 13-30 499 DATE: January 7, 2021 REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1995 to July 1995 and on periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) between January 1986 and June 2003, with verified periods from December 1985 to November 1986 and December 1995 to March 1996. A point credit summary indicates she was on “ACTIVE DUTY OTHER” from June 17, 1998 to October 14, 1998. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The issues were previously before the Board in September 2017 and August 2019, where they were remanded for additional development. They have since been returned for further appellate review. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in November 2016. The Veteran is diagnosed with osteoarthritis of both her left knee and left shoulder that she asserts are related to in-service injuries. While the Board sincerely regrets additional delay, the matters must once again be remanded. In its denial of her left knee claim, the RO noted that, while the Veteran’s service treatment records (STRs) reflected treatment for left knee pain on October 13, 1998 (see October 2012 rating decision) and in “November 1995, 1996, and 1998” (see September 2013 statement of the case), these dates did not correspond to the Veteran’s periods of active duty for service connection purposes. As these particular STRs were not of record for the Board’s review, however, the RO was to obtain and associate them with the claims file. Review of the record reveals that no action was taken regarding retrieval of the STRs and there is no formal finding of their unavailability. Thus, the STRs alluded to by the RO in October 2012 and September 2013 should be obtained and uploaded to the Veteran’s electronic claims file. While an additional VA knee examination was afforded to the Veteran pursuant to the Board’s remand in January 2020, as the negative opinion was provided without these records was again based on incorrect facts, another medical opinion is necessary. Additionally, and in regard to the above STRs, the Board noted previously that the Veteran’s pay records suggested that she was in some sort of duty status for 5 days in November 1995, 15 days in November 1996, and on October 13, 1998, but not at all in November 1998. This was based on Defense Finance and Accounting Service (DFAS) payment worksheets showing codes “50” and “22” on certain dates. On remand, the RO was to verify from DFAS on the significance of “50” and “22” codes listed on days of each month. DFAS confirmed in November 2019 that Code 50 refers to Active Duty and Code 22 refers to Morning and Afternoon Drill. The Board notes that “active service,” for service connection purposes includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. §§ 101(21), (24), 1131; 38 C.F.R. §§ 3.6(a), (d), 3.303(a). As such, any VA examiner’s addendum medical opinion as to the Veteran’s left knee disability should consider any additional STRS obtained by the RO that reflect knee pain on the above periods of ACDUTRA and/or INACDUTRA. As to the Veteran’s left shoulder disability, a November 2017 examiner opined that it was less likely than not that the Veteran’s left shoulder osteoarthritis was related to her military service, noting no actual treatment records for her left shoulder disability are of record, to include during any qualifying period of service or in the years following. As the Veteran’s STRs showed one complaint of left shoulder pain in September 1998, assessed at the time as a spasm of the trapezius muscle, an additional examination was ordered by the Board in its last remand as pay records suggested that the Veteran was on a duty status for all of September 1998. The examination was afforded in January 2020, with an addendum in July 2020. Regardless of whether the above examination and opinion is sufficient for adjudication purposes, the record appears absent private treatment records identified by the Veteran as to both her left shoulder and left knee disabilities. Of note, subsequent to the Board’s last remand, the Veteran responded to a November 2019 development letter from the RO with an incomplete VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs, for private treatment records for her left shoulder. Additionally, in a January 2020 statement, the Veteran indicated she had private treatment records for her left knee in her possession due to retirement of the treating physician. As such, in May 2020, the RO mailed the Veteran a new VA Form 21-4142 to complete, as well as a VA Form 21-4124a, General Release for Medical Provider Information to the Department of Veterans Affairs. She was also asked to submit her copy of the private treatment records for her left knee. This correspondence, however, was returned as undeliverable. Review of the record reflects that, at that time, the Veteran relocated from Florissant, Missouri, to Converse, Texas, a suburb of San Antonio. While her address was apparently confirmed by the RO in June 2020, no follow-up to the initial May 2020 correspondence was sent to the Veteran. Thus, the Veteran’s current address should be confirmed, and another attempt made to obtain any private medical treatment records. If additional treatment records are obtained as to the Veteran’s left shoulder disability, any additional development should be undertaken if deemed necessary, to include obtaining an additional medical opinion. The matters are therefore REMANDED for the following actions: 1. Confirm the Veteran’s current mailing address. 2. Ask the Veteran to identify all outstanding treatment records relevant to her claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the Veteran provides the necessary authorization. The RO should specifically resend the Veteran the correspondence dated May 1, 2020 or ensure that the information in that letter is provided to her. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of their unavailability. 3. Associate with the claims file the Veteran’s STRs noted by the RO in its October 2012 rating decision and September 2013 statement of the case that indicate treatment for knee pain in 1995, 1996, and 1998. 4. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current left knee disability onset during service or is otherwise related to an in-service injury, event, or disease, to include any reports of knee pain during a period of ACDUTRA or INACDUTRA. The examiner should also consider any additional private treatment records obtained on remand, as well as a September 2003 assessment by the Veteran’s private physician, Dr. G.C., that she “has been suffering from left knee arthritis, most likely related to early osteoarthritis or strenuous exercise of her knees.” A history of 3 months of left knee pain was noted at the time. The need for an additional examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 5. If, after records development is completed, additional treatment records pertaining to the Veteran’s left shoulder disability are obtained, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current left shoulder disability onset during service or is otherwise related to an in-service injury, event, or disease, to include any reports of shoulder pain during a period of ACDUTRA or INACDUTRA, to include in September 1998. (Continued on the next page.) The need for an additional examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Scarduzio, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.