Citation Nr: 1007149 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 07-22 853 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a right shoulder condition. 2. Entitlement to service connection for a low back condition. 3. Entitlement to service connection for a right knee condition, to include aggravation of a pre-existing right knee injury. 4. Entitlement to service connection for a left knee condition, claimed as secondary to a right knee condition. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Dale, Associate Counsel INTRODUCTION The Veteran served as a member of the United States Army, with active service from October 1964 to October 1966. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a March 2005 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office in Atlanta, Georgia (the RO). The Veteran testified at a hearing before the undersigned at the RO in December 2009. A transcript of the hearing has been associated with the claims folder. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Although the Board regrets any further delay, the Veteran's claims for entitlement to service connection must be remanded for additional development. At the outset, the Board notes that the Veteran testified at the December 2009 hearing that he has been in receipt of disability benefits from the Social Security Administration (SSA) since 2003. See the VA hearing transcript at page 23. Further, the Veteran stated that his SSA disability award was based on his bilateral knee and back conditions; the specific conditions herein under consideration. When VA has notice that the Veteran is receiving disability benefits from the SSA, and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting SSA disability benefits, and the supporting medical documents on which the decision was based. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); see also Hayes v. Brown, 9 Vet. App. 67 (1996). Furthermore, the VCAA emphasizes the need for VA to obtain records from other government agencies. See 38 U.S.C.A. § 5103A (b)(3), (c)(3) (West 2002). The RO should request copies of the Veteran's SSA medical records and any determination of benefits made by SSA. 1. Entitlement to service connection for a right shoulder condition Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4)(i) (2009). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court noted that the third prong of 38 C.F.R. § 3.159(c)(4)(i), requires that the evidence of record "indicate" that the claimed disability or symptoms may be associated with service, establishes a low threshold. See also Locklear v. Nicholson, 20 Vet. App. 410 (2006). In this case, the Veteran has presented competent evidence of a current right shoulder condition. Notably, the Veteran has twice undergone right shoulder surgery to repair a tear in his right rotator cuff (January 2003 and April 2004). In light of the Veteran's in-service treatment for right shoulder pain, diagnosis of right shoulder ligamentous crepitation in June 1966 and specific complaints of right shoulder pain noted in his August 1966 separation examination report, a VA examination should be afforded so as to discover whether the Veteran's current right shoulder condition is related to the Veteran's period of active service. 2. Entitlement to service connection for a low back condition The Veteran has presented competent evidence of a low back condition (specifically, chronic degenerative disc disease of the lumbar spine). While the Board notes that the Veteran's service treatment records are devoid of evidence of complaints of or treatment for back pain during service, the Veteran testified that he did, in fact, experience low back pain in service. The Veteran is certainly competent to give evidence about what he experienced; for example, he is competent to report that he experience low back pain. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). As noted above, in McLendon, the Court noted that the third prong of 38 C.F.R. § 3.159(c)(4)(i), requires that the evidence of record "indicate" that the claimed disability or symptoms may be associated with service, establishes a low threshold. See also Locklear, supra. As such, the Board finds that a remand is necessary so that a VA examination may be afforded so as to discover whether the Veteran's current low back condition is related to the Veteran's period of active service. 3. Entitlement to service connection for a right knee condition, to include aggravation of a pre-existing right knee injury The Veteran contends that his pre-existing right knee injury was aggravated during his service. In particular, he testified that the constant stress of physical training caused swelling and pain in his right knee. See the December 2009 hearing transcript at page 17. For purposes of 38 U.S.C.A. §§ 1110 and 1131, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). The plain language of this statute provides that the presumption of soundness is rebutted only if clear and unmistakable evidence establishes both that (1) the condition existed prior to service and (2) the condition was not aggravated by service. A claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOGCPREC 3-2003 (July 16, 2003); see generally Cotant v. Principi, 17 Vet. App. 116, 124 (2003) (Court raised the question of the proper interpretation of sections 1111 and 1153 and the validity of the pertinent part of 38 C.F.R. § 3.304(b) under that interpretation). The service treatment records reflect that, although the Veteran's lower extremities were found to be clinically normal and he indicated that he had never suffered from "trick" or locked knees on his December 1963 pre-induction examination report, the report also noted that the Veteran had torn his right medial collateral ligament (MCL) in January 1963 and reported that his legs were "weak and painful". Further, the Veteran's October 1964 entrance examination report similarly notes the Veteran's MCL tear in January 1963. Consequently, there are questions of whether the Veteran had a pre-existing right knee disability and, if so, whether the pre-existing right knee injury was aggravated during service. These questions were neither considered nor addressed by the RO. A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air 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. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a). The additional service treatment records reflect that the Veteran complained of and was treated for right knee pain in September 1965. Further, the Veteran's complaints of right knee pain were noted on his August 1966 separation examination report. Because there is evidence that the Veteran's pre-existing right knee injury might have progressed in severity during service, a remand for an examination is necessary. McLendon, supra. Additionally, the evidence of record does not indicate that the Veteran has received complete notice pursuant to the Veterans Claims Assistance Act of 2000 (the VCAA). Although the Veteran received a VCAA notice letter following his claims, that November 2004 letter failed to notify the Veteran of the evidentiary requirements with respect to service connection claims based on aggravation of a pre- existing injury under 38 C.F.R. § 3.306. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) [holding that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial]. If, as here, the record has a procedural defect with respect to the notice required under the VCAA, this may not be cured by the Board. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The Board therefore must remand the case to the agency of original jurisdiction because the record does not show that the Veteran was provided adequate notice under the VCAA and the Board is without authority to do so. 4. Entitlement to service connection for a left knee condition, claimed as secondary to a right knee condition The Veteran is currently seeking service connection for a left knee condition, claimed as secondary to a right knee condition. As explained immediately above, the Board is remanding the Veteran's claim for service connection for a right knee condition for additional evidentiary development. Favorable adjudication of this claim by the agency of original jurisdiction would impact the issue of the Veteran's entitlement to service connection for a left knee condition, claimed as secondary to a right knee condition. In other words, if the Veteran's claim for service connection for a right knee condition is granted or denied, this may impact the left knee condition claim. Thus, these issues are inextricably intertwined. Further, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103. Regarding the Veteran's claim of entitlement to service connection for a left knee condition, claimed as secondary to a right knee condition, the Veteran has not been afforded notice regarding the criteria necessary to substantiate a claim for service connection secondary to a service-connected disability. See Sanders and Disabled American Veterans , both supra. Therefore, the RO should mail a corrective notice to the Veteran outlining these requirements. Additionally, while VA outpatient treatment records note that the Veteran has reported that he suffers from degenerative joint disease of the left knee, the Veteran's claims file is devoid of x-ray findings consistent with that notation. Copies of those records should be obtained. Moreover, pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2009). As noted above, the third prong of 38 C.F.R. § 3.159(c)(4)(I), requires that the evidence of record "indicate" that the claimed disability or symptoms may be associated with service, establishes a low threshold. See McLendon and Locklear, both supra. Accordingly, the case is REMANDED for the following action: 1. Review the claims file and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000 (VCAA) is completed. In particular, the RO should ensure that notification is provided regarding requirements and development procedures necessary to substantiate claims for secondary service connection and service connection based on aggravation of a pre-existing injury under 38 C.F.R. § 3.306 (2009). 2. The RO should obtain from SSA records pertinent to the Veteran's claims for disability benefits, including any decisions made and medical records relied upon concerning that claim. All efforts to obtain these records should be fully documented, and SSA should provide a negative response if records are not available. 3. Obtain a complete copy of the Veteran's inpatient and outpatient treatment records from the Columbia VA Medical Center (VAMC). Any negative development should be properly annotated in the file. 4. The RO should arrange for the Veteran to be scheduled for a VA orthopedic examination to determine the nature and etiology of any current right knee, left knee, right shoulder or low back conditions. The claims folder must be made available to the examiner for review and the examination report must indicate whether such review was accomplished. After examination and review of the claims folder, the examiner should address the following: a) Identify all current right knee, left knee, right shoulder and/or low back conditions. b) As to each diagnosed condition, indicate whether it is at least as likely as not that any current disorder(s) is/are etiologically related to the Veteran's period of active service. In forming the requested opinions, the examiner should consider the Veteran's complete medical background, to include the Veteran's February 1992 and January 2002 motor vehicle accidents and a forklift accident in 2003. c) Concerning the Veteran's right knee condition claim, does the evidence of record clearly and unmistakably show that the Veteran had a disability of the right knee that existed prior to his entry onto active duty in October 1964? d) If the VA examiner finds that a right knee disability existed prior to service, does the evidence of record clearly and unmistakably show that the pre-existing condition was not aggravated by service, beyond the natural progression of the disorder-that is, whether it underwent a permanent worsening in severity during service as opposed to a mere flare-up of symptoms. (Temporary or intermittent flare-ups of symptoms of a pre-existing condition, alone, do not constitute aggravation unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991)). e) Concerning the Veteran's left knee condition claim, the examiner should additionally opine whether such was at least as likely as not caused and/or aggravated by any diagnosed right knee condition. A detailed rationale should be provided for all opinions. A report should be prepared and associated with the Veteran's VA claims folder. The claims file must be made available to the examiner(s) and the examiner should indicate in his/her report whether or not the claims file was reviewed. A rationale for any opinion expressed should be provided. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. 5. The RO should then readjudicate the claims in light of all of the evidence of record on the merits. If the claims remain denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ MICHAEL A. HERMAN Acting 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) (2009).