Citation Nr: 1228107 Decision Date: 08/15/12 Archive Date: 08/21/12 DOCKET NO. 09-26 200 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder, as secondary to the service-connected retropatellar pain syndrome of the right knee and/or the service-connected chondromalacia of the patella of the left knee. 2. Entitlement to an increased rating for retropatellar pain syndrome of the right knee, evaluated as 20 percent disabling. 3. Entitlement to an increased rating for chondromalacia of the patella of the left knee, evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran served on active duty from November 1993 to September 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. 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 further delay is regrettable, the Board finds that additional development is necessary in order to adjudicate the issues on appeal. With regard to the Veteran's lumbar spine claim, the Board observes that the Veteran underwent a VA examination of his lumbar spine in April 2008. The examiner diagnosed lumbar myositis, but found that the disorder was not "caused by or a result of" the Veteran's service-connected right and left knee disorders, because the "lumbar area and knee condition are two [different] anatomical parts. Also, lumbar condition is secondary to muscle inflammation and not from mechanical cause." Although the examiner indicated that the Veteran's lumbar myositis was the result of muscle inflammation and not a mechanical cause, his notation that the "lumbar area and knee condition are two [different] anatomical parts" does not address with sufficient clarity the Veteran's contention that his lumbar spine disorder was caused by an antalgic gait resulting from his service-connected right and left knee disorders. In addition, the examination report did not state whether it was at least as likely as not that any lumbar spine disorder was chronically worsened by a service-connected disability. Under 38 C.F.R. § 3.310(a), establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by, or (b) proximately aggravated by, a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc)(emphasis added). Moreover, where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448 (holding that 38 C.F.R. § 3.310 authorizes a grant of service connection not only for disability caused by a service-connected disability, but for the extent of additional disability resulting from aggravation of a nonservice-connected disability by a service-connected disability). Indeed, and in this regard, the Board acknowledges that, effective October 10, 2006, 38 C.F.R. § 3.310 was amended to conform to the United States Court of Appeals for Veterans Claims (Court) decision in Allen. This regulatory amendment will need to be addressed on Remand-particularly because the regulatory revision adds a "baseline level of severity" requirement for the nonservice-connected disability. 38 C.F.R. § 3.310(b) (2011). Moreover, evidence received subsequent to the April 2008 VA examination reflects that the Veteran has degenerative disc disease at L5-S1, which was not noted on examination in April 2008. Also, in a November 2009 statement, Dr. H.D.N. stated that the Veteran's lumbar spine disorder was "in my opinion, a service-connected condition" and "has been worsening with time, as was expected due to his knee condition." Dr. N. did not provide a rationale for these findings. Accordingly, the record, as it stands, is inadequate for the purpose of rendering a fully informed decision as to the Veteran's lumbar spine claim. Thus, the Board finds that a new VA examination of the Veteran's lumbar spine is necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Moreover, with regard to the Veteran's claims for higher ratings for his service-connected right and left knee disabilities, the Board notes that review of the record reflects that the Veteran has loose bodies in both knees, which has been characterized as residuals of Osgood-Schlatter's disease, a disorder for which service connection has not been established. However, review of the Veteran's service treatment records (STRs) reflects that bilateral Osgood-Schlatter's disease was first observed during service. This issue has not been adjudicated by the RO and must be referred to the agency of original jurisdiction (AOJ) for appropriate disposition. In this regard, the Board further finds that this issue is inextricably intertwined with the Veteran's claims for increased ratings for his service-connected right and left knee disorders. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (claims related to each other should not be subject to piecemeal decision-making or appellate litigation). In other words, an award of service connection for residuals of bilateral Osgood-Schlatter's disease may impact his rating claims. Further, the Veteran was last afforded a VA examination of his knees in September 2010, with a supplemental examination taking place in November 2010. On his November 2010 substantive appeal (which was received at the RO approximately two weeks later), however, the Veteran indicated that his service-connected knee disabilities may have worsened since he was last examined. Specifically, the Veteran contended that the symptoms associated with his knee disabilities were constantly increasing in severity, that he could not "walk, run, bend, kneel," and that he was in constant pain. Thus, the Board finds that the record, as it currently stands, does not adequately reveal the present state of the Veteran's right and left knee disabilities, especially if these disabilities have indeed worsened. Thus, remand is required to secure an examination to ascertain the current level of severity of these disabilities. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted); VAOPGCPREC 11-95 (1995) (VA is obliged to afford a veteran a contemporaneous examination where there is evidence of an increase in the severity of the disability.) In addition, there are outstanding VA records that have not been associated with the claims folder. Specifically, in his June 2009 notice of disagreement (NOD), the Veteran stated that evidence pertinent to his rating claims was located at the San Juan VA Medical Center (VAMC). Although reports of VA examinations conducted at the San Juan VAMC have been received, no clinical notes from that facility have been obtained. Thus, a request for any records of the Veteran's treatment at the San Juan VAMC should be accomplished upon remand. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2) & Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). The record further reflects that the Veteran has received treatment for his knee and spine disorders from private treatment providers, identified as Dr. F.J.R.L. and Dr. H.D.N. However, a complete set of records from these providers has not been associated with the record. Because these records may be of use in deciding the Veteran's claims, they should be obtained. 38 C.F.R. § 3.159(c)(1) (2011). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information form, procure and associate with the claims folder copies of records of any post-service knee or low back treatment that Dr. F.J.R.L. and/or Dr. H.D.N have rendered to the Veteran since his discharge from active duty in September 1997. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran of the attempts made and allow him the opportunity to obtain the records. 2. Also, obtain from the San Juan VAMC copies of records of knee and low back treatment that the Veteran may have received at that facility since his discharge from active duty in September 1997. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and allow him the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). All such available records should be associated with the Veteran's VA claims folder. 3. Thereafter, accord the Veteran a VA examination to determine the current nature and extent of the service-connected retropatellar pain syndrome of his right knee and the service-connected chondromalacia of the patella of his left knee. The Veteran's claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination, and a notation that this review has taken place should be made in the examination report. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. To the extent possible, the examiner should associate that pathology related to these service-connected knee disabilities and that pathology associated with his bilateral Osgood-Schlatter's disease. The examiner should undertake range of motion studies of the Veteran's right and left knees and comment on the degree of disability due to functional losses such as pain and weakness. The examiner should also elicit information as to the frequency, duration, and severity of any of the following symptoms shown on examination, to include ankylosis, recurrent subluxation or lateral instability, and impairment of the tibia and fibula (nonunion or malunion). The examiner should discuss the extent of any loss of function in daily activities, including work and physical activity due to the service-connected retropatellar pain syndrome of the Veteran's right knee and the service-connected chondromalacia of the patella of his left knee. Moreover, the examiner should opine as to whether it is as least as likely as not (e.g., a 50 percent probability or greater) that the Veteran's bilateral Osgood-Schlatter's disease had its onset during his active duty or is otherwise causally or etiologically related to his active service or any incident therein. If not, the examiner should then opine as to whether there is a 50 percent probability or greater that the Veteran's bilateral Osgood-Schlatter's disease was caused, or aggravated (chronically worsened), by the service-connected retropatellar pain syndrome of his right knee and/or the service-connected chondromalacia of the patella of his left knee. If aggravation is found, the examiner should specify what measurable degree of the bilateral Osgood-Schlatter's disease represents a permanent increase in its severity caused by the service-connected retropatellar pain syndrome of his right knee and/or the service-connected chondromalacia of the patella of his left knee. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (additional facts are required, or the examiner does not have the needed knowledge or training). 4. Also, schedule the Veteran for an appropriate examination to determine the nature, extent, and etiology of his lumbar spine disability. The claims folder and a copy of this Remand must be made available to, and reviewed by, the examiner in conjunction with the examination. A notation that this review has taken place should be made in the evaluation report. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. All pertinent low back pathology shown on examination should be annotated in the examination report. Following a review of the record and an examination of the Veteran, the examiner should express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that any diagnosed lumbar spine disorder was caused, or aggravated (chronically worsened), by the service-connected retropatellar pain syndrome of the right knee and/or the service-connected chondromalacia of the patella of the left knee. If aggravation is found, the examiner should specify what measurable degree of the diagnosed lumbar spine disability represents a permanent increase in its severity caused by the service-connected retropatellar pain syndrome of the right knee and/or the service-connected chondromalacia of the patella of the left knee. The examiner must reconcile his or her findings with the November 2009 statement from Dr. H. D. N., and explain any difference in opinion. If the examiner feels that the requested opinion(s) cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (additional facts are required, or the examiner does not have the needed knowledge or training). 5. Ensure that the examination reports comply with (and answers the questions posed in) this Remand. If the report(s) is(are) insufficient, it(they) should be returned to the examiner for corrective action, as appropriate. 6. Then, readjudicate the issues on appeal. If any benefit remains denied, the Veteran should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. No action is required of the Veteran until he is notified by the AOJ; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2011). He has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims remanded by the Board or 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. 2012). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2011).