Citation Nr: 0812623 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 06-11 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a mid back disorder. 3. Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a veteran who served on active duty from March 1984 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Philadelphia, Pennsylvania, Regional Office and Insurance Center (RO) of the Department of Veterans Affairs (VA). The veteran failed, without good cause, to appear for a scheduled hearing in August 2006. Therefore, his request for a Board hearing is considered as having been withdrawn. 38 C.F.R. § 20.704 (2007). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). A review of the record shows the veteran was notified of the VCAA duties to assist and of the information and evidence necessary to substantiate his claims by correspondence dated in March 2004. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), held that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in March 2006. The revised VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. See 38 C.F.R. § 3.159 (2007). A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4). VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1132 (West 2002); 38 C.F.R. § 3.304(b) (2007). VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003 (holding, in part, that 38 C.F.R. § 3.304(b) is inconsistent with 38 U.S.C. §§ 1111, 1132 to the extent that it states that the presumption of sound condition may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under this rebuttal standard attaches. See Cotant v. Principi, 17 Vet. App. 116 (2003). A preexisting injury or disease will be considered to have been aggravated by active military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded, however, where the disability underwent no increase in severity during service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2007). In cases involving aggravation by active service, the rating is to reflect only the degree of disability over and above the degree of disability existing at the time of entrance into active service, whether the particular condition was noted at the time of entrance into active service, or whether it is determined upon the evidence of record to have existed at that time. 38 C.F.R. § 3.322(a) (2007). The Court has also recognized that temporary flare-ups of a pre-existing disorder during service, without evidence of a worsening of the underlying condition, did not constitute aggravation. Hunt v. Derwinski, 1 Vet. App. 292, 296-7 (1991). In this case, the veteran claims that his present mid and low back problems began as a result of having been hit by a truck during active service. He also contends Osgood-Schlatter's disease of the right knee was aggravated during service. Service medical records reveal a normal clinical evaluation of the spine and lower extremities upon enlistment examination in January 1984. A February 1984 report noted complaints of upper back stiffness. The examiner's assessment was paravertebral back spasm. An August 1984 examination revealed tenderness in the right infrascapular muscles with mild spasm. An October 1985 report noted the veteran had been hit by a truck and thrown across the hood of another vehicle while directing traffic. He complained of back pain with numbness to the face, neck, arms, hands, and legs. X-rays of the left scapula and cervical spine revealed no fractures or abnormalities. The diagnosis was musculoskeletal contusion to the left scapula. Service medical records also show that in January 1985 the veteran complained of a knot on the right knee with swelling and loss of hair in the area. He denied any recent trauma. The examiner noted edema without discoloration and tenderness over the swollen area. A diagnosis was deferred with right knee pain of unknown etiology. A January 1986 orthopedic service note included a diagnosis of probable post Osgood- Schlatter's disease with current bursa irritation. Records dated in February 1986 noted a diagnosis of Osgood- Schlatter's disease and a 30 day physical profile limitation was recommended. An April 1987 report noted orthopedic problems and a history of Osgood-Schlatter's disease. In June 1987, the veteran reported a history of knee pain subsequent to having been hit by a truck in 1985. X-ray examination in June 1987 revealed an old fragmentation of the tibia tubercle without osseous union compatible with old Osgood-Schlatter's disease. There was no evidence of recent osseous injury or disease. The veteran's January 1988 separation examination revealed a normal clinical evaluation of the spine and lower extremities. A March 1990 report of medical history noted the veteran stated he had been hospitalized for neurologic observation after a motorcycle accident. No date was identified. Private medical records show that there were no significant abnormalities upon X-ray examination of the lumbar spine in July 1995. The vertebral bodies and their appendages appeared to be intact. VA treatment records dated in January 2004 noted a history of chronic low back pain and back spasms. It was noted the veteran related his back and knee problems to a motorcycle accident during active service in 1987. On VA examinations in July 2004 the veteran complained of back and right knee problems that had persisted since he was rear-ended while driving a motorcycle and pushed into the automobile in front of him. It was the examiner's opinion that the veteran's right tibia tubercle pain and stiffness of the right trapezius muscle were related to the motorcycle accident during service, but that his other knee pains and lumbar spine symptoms were not at all likely related to the motorcycle accident. Although the examiner noted the file was review, no discussion was provided as to the diagnoses of Osgood-Schlatter's disease and muscle spasms during service. The Board also notes that the available service medical records include a report dated in March 1990 noting a period of hospital observation after a motorcycle accident, but do not indicate back or right knee injuries were incurred as a result of a motorcycle accident during active service. In light of the inconsistent medical evidence of record, the Board finds that additional development is required prior to appellate review. In statements made to the physician during the June 2004 VA medical examination, the veteran stated that he "retired" in 1999. The veteran was born in November 1962, making him approximately 37 years old when he retired. It was not indicated whether this was a voluntary retirement, or a disability-related retirement. Such information may be pertinent to this claim. Accordingly, the case is REMANDED for the following action: 1. The RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully complied with and satisfied. 2. The AMC/RO is to contact the veteran and inquire whether he has ever made application for workmen's compensation or Social Security Administration (SSA) disability benefits. If the response is affirmative, he should be requested to sign the appropriate releases. After the veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified by the veteran, a notation to that effect should be inserted in the file. The veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the veteran the opportunity to obtain and submit those records for VA review. 3. The veteran should be scheduled for VA orthopedic examination for opinions as to whether there is at least a 50 percent probability or greater (at least as likely as not) that any present back or right knee disability was incurred as a result of service. The physician should address whether the evidence demonstrates Osgood-Schlatter's was manifest prior to service and, if so, whether the disease is shown to have been aggravated beyond the normal progression of the disease during active service. All indicated tests and studies are to be performed, and a comprehensive social, educational and occupational history are to be obtained. Prior to the examination, the claims folder and a copy of this remand must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. The veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent, must be associated with the claims folder. The veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claims. 5. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed. All applicable laws and regulations should be considered. If any benefit sought remains denied, the veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant 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 Supp. 2007). _________________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).