Citation Nr: 1231069 Decision Date: 09/11/12 Archive Date: 09/19/12 DOCKET NO. 10-40 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a low back disorder, including degenerative disc disease (DDD) of the lumbar spine as directly incurred in service or as secondary to service-connected right knee disability. 2. Entitlement to service connection for a left knee disorder, including arthritis with varus deformity as secondary to the service-connected right knee disability. 3. Entitlement to service connection for a left hip disorder, including arthritis as additionally secondary to the service-connected right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from July 1954 to July 1958 and in the National Guard from July 1-21, 1962. This appeal to the Board of Veterans' Appeals (Board/BVA) is from May and September 2009 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2011 correspondence from the Veteran's representative, he indicated the Veteran is claiming entitlement to both direct and secondary service connection for his low back disorder, but only secondary service connection for his left knee and left hip disorders. The Board has advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). Since, however, the claims require further development before being decided on appeal, the Board is remanding them to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay that inevitably will result, it is necessary to ensure there is a complete record upon which to decide the Veteran's claims so he is afforded every possible consideration. At the outset, the Board notes that the Veteran's substantive appeal (VA Form 9 or equivalent statement), which he filed to complete the steps necessary to perfect his appeal of these claims to the Board, is not in either his physical claims file or electronic ("Virtual VA") file. He clearly submitted this necessary document following receipt of the August 2010 statement of the case (SOC), however, because VA was aware that he wanted a hearing as Veterans make this request on this particular form. And although a hearing before the Board resultantly was scheduled for June 2011, he failed to report for the proceeding, so was a "no show." His substantive appeal therefore needs to be associated with the file for consideration, especially since he apparently made arguments on this form as to why service connection should be granted for these claimed disorders. As clarified, he is claiming entitlement to both direct and secondary service connection for his low back disorder, whereas he is only instead claiming entitlement to secondary service connection for his left knee and left hip disorders. He maintains that he injured his low back during service in 1954 or 1955 while "spreading trails on a 155 Howitzer." With regard to all three claimed disorders, he alternatively attributes them to his service-connected right knee disability in that his consequent altered gait and impairment in this other knee has caused him to have to overuse and put undue stress on the left side of his body, i.e., his left hip and left knee, as well as his low back. So, in essence, he is alternatively alleging that his service-connected right knee disability has caused or aggravated his left knee, left hip, and low back disorders. Direct service connection is granted for disability resulting from disease or injury directly incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Whereas service connection on this alternatively alleged secondary basis is warranted for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). But when there is aggravation, the Veteran is only compensated for the degree of disability (and only that degree) over and above the degree of disability existing prior to the aggravation. Id.; see also 71 Fed. Reg. 52744-52747 (Sept. 7, 2006). And irrespective of whether the claim is premised on causation or aggravation, supporting medical nexus evidence usually, though not always, is needed to associate the claimed condition with the service-connected disability. Jones (Wayne L.) v. Brown, 7 Vet. App. 134 (1994); Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). In February 2009, the Veteran was afforded a VA compensation examination that confirmed he has arthritis of his left knee and DDD of his low back, so lumbar spine. But the examiner determined the low back disorder was not related to the Veteran's service (this opinion provided in a July 2010 addendum), and that these left knee and low back disorders also were not as likely as not due to his service-connected right knee disability, either. The examiner provided no opinion, however, as to whether the Veteran's service-connected right knee disability had alternatively aggravated his low back, left knee, or left hip disorders. In fact, there was no opinion provided at all with regards to the etiology of his left hip disorder. An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation. Allen, 7 Vet. App. 448; 38 C.F.R. § 3.310(b). In support of his claims, the Veteran submitted a private medical report dated in April 2009. In this report, his physician indicated the current "findings of advanced arthritis could possibly be due to chronic overload and overuse in compensation" from the right knee disability. However, the United States Court of Appeals for Veterans Claims (Court/CAVC) has held that equivocal language such as this is an insufficient basis to grant service connection. See Morris v. West, 13 Vet. App. 94, 97 (1999) (diagnosis that appellant was "possibly" suffering from schizophrenia deemed speculative); Bloom v. West, 12 Vet. App. 185, 186-87 (1999); Obert v. Brown, 5 Vet. App. 30 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Winsett v. West, 11 Vet. App. 420 (1998). The Veteran therefore is invited to provide a more definitive opinion from this physician. Also in the meantime, however, another medical addendum opinion is needed from the VA examiner who performed the February 2009 examination and who subsequently commented in the July 2010 addendum to that evaluation), or, if unavailable, from another VA examiner that is qualified to comment on the etiology of these claimed disorders. In particular, the examiner must review the complete record, including the April 2009 private report mentioned as well as any other relevant evidence added to the record on remand, and provide an opinion regarding whether the service-connected right knee disability is aggravating the low back, left knee and left hip disorders (even if the examiner still does not believe this service-connected right knee disability caused the low back and left knee disorders). The medical opinion obtained thus far only comments on causation, not also the possibility of aggravation, and this, too, is a viable means of establishing entitlement to secondary service connection, so a medical opinion is needed concerning this other possibility, as well. Lastly, since the Veteran apparently continues to receive treatment for his low back, left knee, and left hip disorders at the local VA Medical Center (VAMC) in Detroit, any more recent records of this treatment that are not in the file should be obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(2). See also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA has constructive, if not actual, notice of the possible existence of these additional records since generated within VA's healthcare system, even if not physically in the file, and, if relevant, they must be obtained). Accordingly, the claims are REMANDED for the following additional development and consideration: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. Associate with the record a copy of the Veteran's substantive appeal (VA Form 9 or equivalent statement) or give him additional opportunity to again make arguments concerning his claims. 2. Also obtain and associate with the claims file copies of all clinical records, which are not already in the claims file, of the Veteran's apparent ongoing evaluation and treatment at the local VAMC in Detroit. 3. Upon receipt of all additional records, obtain another addendum opinion from the VA examiner who performed the February 2009 examination and who subsequently commented in the July 2010 addendum to that evaluation, or, if unavailable, from another VA examiner that is qualified to comment on the etiology of these claimed low back, left knee and left hip disorders. The claims file must be made available to the examiner, whoever designated to provide this additional comment, for review and consideration of the relevant medical history. This includes the April 2009 private medical report indicating the current "findings of advanced arthritis could possibly be due to chronic overload and overuse in compensation" from the right knee disability. So with this private doctor's opinion in mind, the VA examiner must comment on the likelihood (very likely, as likely as not, or unlikely) that the Veteran's service-connected right knee disability is aggravating the low back, left knee and left hip disorders (even if the examiner does not believe this service-connected right knee disability caused the low back and left knee disorders). So, to reiterate, the medical opinion obtained thus far only comments on causation, not also the possibility of aggravation, and this, too, is a viable means of establishing entitlement to secondary service connection, so a medical opinion is needed concerning this other possibility, as well. If such aggravation is found to be occurring, the examiner should also, to the extent possible, try and quantify the amount of low back, left knee and left hip disability the Veteran had prior to the aggravation versus since. It is imperative the examiner discuss the underlying rationale for all opinions expressed and conclusions reached, if necessary citing to specific evidence in the file. 4. Ensure this additional opinion is responsive to this additional issue of aggravation. If not, take corrective action. 38 C.F.R. § 4.2. 5. Then readjudicate the claims in light of all additional evidence. If the claims continue to be denied, send the Veteran a supplemental statement of the case and give him opportunity to respond to it before returning the file to the Board for further appellate consideration of the claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 2002 & Supp. 2011). _________________________________________________ KEITH W. ALLEN 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) (2011).