Citation Nr: 1300593 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 10-27 806 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE 1. Entitlement to service connection for a low back disability. 2. Entitlement to an initial rating in excess of 10 percent for a major depressive disorder. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD Jennifer R. White, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1975 to October 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The issues of increased ratings for bilateral knee disabilities have been raised by the record on a VA Form 9 dated June 2010, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The Veteran failed to report for a videoconference hearing before the Board in November 2010. He has not requested that the hearing be rescheduled. Accordingly, his request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). 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 The Board finds that there is a further VA duty to assist the Veteran in developing evidence pertinent to his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran contends that he has a low back disability which is aggravated by his service-connected bilateral knee disabilities. Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310 (b), added effective October 10, 2006, 71 Fed. Reg. 52744 -52747 (Sept. 7, 2006). The Board notes that the VA spine examination dated June 2009 does not indicate if the Veteran's back disability is aggravated by his service-connected bilateral knee disabilities. A letter from the Veteran's private provider, dated October 2009, indicates that the Veteran's degenerative changes of the knees with associated difficulty with ambulation is believed to be contributing to back pain. Such opinion is speculative at best. See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. at 23 (medical opinions which are speculative or inconclusive in nature cannot support a claim). Also, as mentioned above, there is no indication of the baseline severity of the Veteran's back disability. Thus, the Veteran should be afforded an additional VA examination to obtain an opinion as to whether the Veteran's bilateral knee disabilities are aggravating his back disability and, if so, to establish the baseline severity of his back disability. The Veteran submitted some VA treatment records in November 2010. The Veteran submitted a statement, received April 2011, asking that all of his VA treatment records be obtained. He wrote again in June 2012 asking that current VA treatment records be associated with the claims file. Thus, the Board finds that remand is necessary for the all claims on appeal for the association of the Veteran's already unassociated VA treatment records. Thus, ongoing medical records from the VA medical facilities from the Little Rock VA medical system should also obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any pertinent records adequately identified by the Veteran, including any ongoing VA medical records from Little Rock VA medical system not already associated with the claims file. 2. Schedule the Veteran for a VA orthopedic examination to determine the nature of his low back disability and to obtain an opinion as to whether such is aggravated by a service-connected disability. The claims file should be provided to and reviewed by the examiner. Following review of the claims file and examination of the Veteran, the examiner should indicate an opinion as to whether there is a 50 percent or better probability that the Veteran has a current low back disability which is aggravated (permanently worsened beyond its natural progress) by his service-connected bilateral knee disabilities. If aggravation is found, to the extent that is possible, the examiner is requested to provide an opinion as to the approximate baseline level of severity of the low back disability before the onset of aggravation, taking into account other physical maladies noted in the claims file. The examiner should provide the rationale for all opinions expressed. If the examiner cannot respond without resorting to speculation, he should explain why a response would be speculative. 3. Then, the RO should arrange for the Veteran to be afforded an examination by a physician with appropriate expertise in order to ascertain the current nature and extent of impairment attributable to his service-connected psychiatric disorder. The claims file must be made available to and reviewed by the examiner, and the examiner should indicate in the report that the file was reviewed. The examiner should provide an opinion as to the degree of impairment attributable to the psychiatric disorder. He or she should provide a Global Assessment of Functioning score for the present time and the past to the extent possible. The impact of the psychiatric disorder and other service-connected disabilities on the Veteran's ability to work should be addressed. The examiner is requested to provide the complete rationale for any opinion expressed. If he or she is not able to reach an opinion without resort to speculation, he or she should explain the reason for this inability and comment on whether any further tests, evidence, or information would be useful in rendering an opinion. 4. After completing any additional development deemed necessary, the RO/AMC should readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. If any determination remains adverse to the veteran, he should be furnished a Supplemental Statement of the Case and be given an opportunity to respond. The Veteran 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). 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 Supp. 2012). _________________________________________________ WAYNE M. BRAEUER 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) (2012).