Citation Nr: 1303584 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 09-33 926 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a bilateral knee disability. 2. Entitlement to a compensable evaluation for a right thumb disability. 3. Entitlement to an evaluation in excess of 40 percent for a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1980 to May 1995. This matter comes before the Board of Veterans' Appeals (Board) from a November 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Service connection for a bilateral knee condition was denied therein. The Veteran's previously established noncompensable evaluation for a service-connected mallet deformity of the right thumb was continued therein, as was his 40 percent evaluation for service-connected degenerative disc and joint disease of the lumbar spine. He appealed each of these determinations. Subsequently, jurisdiction was transferred to the RO in St. Petersburg, Florida. The Board recharacterized the issues comprising this matter as set forth above in March 2012. A remand then was directed for additional development in the form of a video-conference hearing requested by the Veteran. Such hearing was scheduled but was not held, however, as he indicated his desire that it be cancelled. Thus, his hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e) (2012). This matter once again is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC, based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." VA will notify the Veteran if further action is required. REMAND Although the Board sincerely regrets the further delay of another remand, adjudication of this matter cannot proceed without more additional development. Such development is necessary to ensure that there is a complete record upon which to determine the Veteran's entitlement to service connection for a bilateral knee disability, to a compensable evaluation for a right thumb disability, and to an evaluation in excess of 40 percent for a low back disability. VA indeed has a duty to assist the Veteran in substantiating his claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). I. Records The duty to assist includes making reasonable efforts to help procure pertinent records. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c) (2012). Reasonable efforts with respect to records in Federal custody consist of making as many requests as are necessary to obtain them unless it is concluded that they do not exist or that further requests would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). The Veteran shall be notified in the event of one or both of these circumstances. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). In October 2009, the Social Security Administration (SSA) indicated that it either presently had no medical records concerning the Veteran or was unable to locate such records. VA accordingly issued an October 2009 formal finding that SSA records were unavailable. Yet in April 2010, an attorney submitted to VA a letter noting that the Veteran had a pending claim for disability benefits before the SSA. A reasonable possibility therefore exists that there are currently SSA records concerning the Veteran even though there were none in the past. It is unknown whether such records are relevant to this matter in that they concern his knees, right thumb, and/or low back. As such, the possibility that they are relevant cannot be excluded. Requests thus must be made for them. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); see also Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009); Diorio v. Nicholson, 20 Vet. App. 193 (2006); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). No such requests have been made to date, however. A remand is necessary so that a request or requests can be made. Notification to the Veteran of the inability to obtain his SSA records, whether because they do not exist or because further requests would be futile, additionally shall be made on remand if necessary. VA treatment records dated through July 2008 are of record. One October 2008 VA treatment record and one March 2009 VA treatment record, submitted by the Veteran, additionally are of record. All of these records document continued treatment for his low back, right thumb, and knees. It accordingly is inferred that there may be outstanding pertinent VA treatment records dated from July 2008 to present. There is no indication that VA treatment records dated from July 2008 to present have been requested. VA has constructive notice of VA generated documents that could plausibly be expected to be part of the record. Bell v. Derwinski, 2 Vet. App. 611 (1992). Indeed, such documents are constructively part of the record before the Board even where they are not actually before the adjudicating body. Id. The aforementioned requests accordingly must be made. Doing so requires remand. In the event it is concluded following one or more such requests on remand that updated VA treatment records do not exist or that further requests for them would be futile, the Veteran shall be notified. II. Medical Examination and Opinions If VA undertakes the effort to provide a medical examination or opinion with respect to service connection, whether or not obligated to do so, the duty to assist requires that it be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The duty to assist also requires that any VA medical examination or opinion obtained with respect to a higher evaluation be adequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Hayes v. Brown, 9 Vet. App. 67 (1996). A medical examination or opinion is adequate when it allows the Board to perform a fully informed evaluation of the claim. Id. As such, it must be fully informed itself. It must be based upon consideration of the Veteran's entire medical history, in other words. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Ardison v. Brown, 6 Vet. App. 405 (1994). This helps ensure that the factual premises underlying a medical opinion will be accurate, as is required. Reonal v. Brown, 5 Vet. App. 458 (1993). The rationale for a medical opinion also must be fully and clearly articulated. Stefl, 21 Vet. App. at 120; Nieves-Rodriguez, 22 Vet. App. at 295. The Veteran was afforded a VA medical examination complete with medical opinion regarding his entitlement to service connection for a bilateral knee disability in September 2010. Review of his claims file and medical records was undertaken by the examiner. The examiner also interviewed him and performed a physical assessment of his knees. X-rays were also obtained. Mild bilateral degenerative joint disease was diagnosed. The examiner opined that this condition is less likely as not caused by or a result of the Veteran's service or his service-connected low back disability. It was noted in this regard that service treatment records contained only one complaint by him of a knee problem in August 1988 and his denial of knee problems at his March 1995 separation examination. Also noted was that these records mainly showed back strains with no new injury or trauma. For several reasons, the aforementioned examination and opinion are inadequate. The Veteran's entire medical history was not considered by the examiner. Pertinent evidence was added to the claims file of Virtual VA "eFolder" after the examination. Attempts additionally must be made to obtain SSA records and updated VA treatment records on remand, as discussed above. Further, the Veteran's entire medical history even as of the September 2010 examination was not considered. In addition, some of the missing records are probably dated during or before September 2010, as a claim for SSA disability benefits was pending at least as of April 2010 and VA treatment records dated as far back as July 2008 may be outstanding. It additionally appears that even the portion of the Veteran's medical history that was considered by the September 2010 examiner was not considered thoroughly. A March 2008 VA treatment record reflecting the opinion of a physical therapy assistant and a physical therapist that the Veteran's knee pain "was stimulating from back pain" was not mentioned or otherwise acknowledged by the examiner. This is true despite review of the claims file containing that record. A March 2009 VA treatment record reflecting the opinion of a physician that the knee braces ordered for the Veteran "were a reflection of his back pain" also was not mentioned or otherwise acknowledged by the examiner. Although not associated with the claims file until after September 2010, this record is a medical record and thus was subject to review. The examiner's opinion is also incomplete. Service connection may be established in a variety of manners, to include secondary service connection. Secondary service connection means that a current non-service-connected disability "is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a) (2012). Establishing service connection on a secondary basis requires showing that a current disability was either proximately caused by or proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Here, the examiner determined that the Veteran's current bilateral knee disability is less likely as not caused by or a result of his service-connected low back disability. Proximate cause was considered, in other words. However, there was no consideration of whether the Veteran's current bilateral knee disability was aggravated by his service-connected low back disability. Indeed, aggravation was not even referenced. Lastly, the rationale for even the incomplete opinion rendered by the examiner is not fully or clearly articulated. Only service treatment records were noted for their lack, with one exception, of knee complaints as a rationale for the opinion that the Veteran's current bilateral knee disability is less likely as not caused by or a result of his service. The other evidence, including private treatment records documenting knee complaints from him between 1999 and 2003 and VA treatment records documenting such complaints beginning in 2008, thus was not noted. As such, there was no discussion regarding continuity of symptomatology. Continuity of symptomatology must be taken into account, as it is another manner in which service connection can be established. 38 C.F.R. § 3.303(b) (2012); Savage v. Gober, 10 Vet. App. 488 (1997). With respect to the opinion that the Veteran's current bilateral knee disability is less likely as not caused by or a result of his service-connected low back disability, only service treatment records once again were noted. The other evidence, to include previous VA medical examinations and VA treatment records with findings of normal gait and abnormal gait, was not noted. It also is unclear why the examiner noted that service treatment records mainly showed back strains with no new injury or trauma. The Veteran's low back disability is at issue only insofar as a potential causal or aggravation relationship might exist between it and his current bilateral knee disability. No explanation was provided for why the identified service treatment records make such a relationship more or less likely. Regarding the Veteran's service-connected low back disability, VA medical examinations were conducted in August 2008, September 2010, and May 2011. He denied that his back pain radiated to his legs at the September 2010 examination but complained of such radiation at the August 2008 and May 2011 examinations. He additionally complained of erectile dysfunction at the May 2011 examination. The physical assessment at each examination included normal sensory, reflex, and/or motor findings in the lower extremities. In response to a question on whether the etiology of erectile dysfunction is "unrelated to claimed disability," the examiner opined no. The aforementioned examinations, the latter complete with opinion, are inadequate. While service-connection and a 40 percent evaluation already is in effect for the Veteran's low back disability, objective neurologic abnormality associated with a disease or injury of the spine is evaluated separately under the appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012). None of the examinations included an opinion concerning an objective neurologic abnormality of one or both of his lower extremities. It follows that there was no discussion of the other evidence, which includes VA treatment records revealing his denial of radicular symptoms but description of sciatic distribution. An opinion that the Veteran's objective neurologic abnormality of erectile dysfunction was not unrelated to his service-connected low back disability was rendered, but no rationale whatsoever was provided to support it. There was no discussion of the evidence, to include VA treatment records diagnosing male erectile disorder, at all. There was no discussion of anything else, such as medical principles. Regarding the Veteran's service-connected right thumb disability, the Veteran underwent a VA medical examination in July 2008. His diagnosis of mallet deformity was changed to De Quirvain's tenosynovitis following physical assessment to include range of motion. The reasons for this were listed as subjectively the thumb still hurts and objectively the assessment that was performed. The aforementioned examination is inadequate. Here, no real explanation was provided by the examiner for why the Veteran's diagnosis was changed. There indeed was no discussion of how his reported symptoms and the findings made signify De Quirvain's tenosynovitis rather than mallet deformity. It is insufficient to point to these symptoms and findings without indicating why they are significant with regard to the diagnosis made and the diagnosis invalidated. There was also no discussion of the other evidence, to include a May 2008 VA treatment record diagnosing De Quirvain's with edema causing impingement of the superficial branch of the radial nerve. Assuming the new diagnosis is correct, the examination additionally is inadequate in that there was no physical assessment concerning radial nerve impairment. Such impairment is the subject of Diagnostic Codes 8514, 8614, and 8714. 38 C.F.R. § 4.124a (2012). Evaluation under them is based on whether there is complete or incomplete paralysis and, if the latter, its severity. The Veteran currently is evaluated under Diagnostic Code 5224. 38 U.S.C.A. § 4.71a (2012). This Diagnostic Code, which addresses ankylosis of the thumb, and Diagnostic Code 5228, which addresses limitation of motion of the thumb, are each based on whether there is any movement and the extent of such movement. The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532 (1993). One Diagnostic Code indeed may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Id. Any change in a Diagnostic Code must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). This is because the repercussion upon an evaluation when change is made of a previous diagnosis must be kept in mind. 38 C.F.R. § 4.13 (2012). Another VA medical examination complete with medical opinion is needed to cure the aforementioned inadequacies. A remand is required so that arrangements can be made in this regard. Accordingly, the case is REMANDED for the following action: 1. Request complete SSA disability records (all determination(s) and the medical records on which such determination(s) were based) regarding the Veteran. Any records obtained shall be associated with the claims file or "eFolder." Notice shall be provided to the Veteran if records are not obtained. Document the claims file or "eFolder" as appropriate regarding this paragraph. 2. Then review the Veteran's claims file and undertake any additional records development indicated. This shall include, at a minimum, requesting updated VA treatment records (July 2008 to the present) regarding the Veteran. Any records received shall be associated with the claims file or "eFolder." Notice shall be provided to the Veteran if records are not obtained. Document the claims file or "eFolder" as appropriate regarding this paragraph. 3. After completion of the above development, arrange for the Veteran to undergo an appropriate VA medical examination regarding his knees, low back, and right thumb. The claims file and pertinent documents in the Virtual VA "eFolder" shall be made available to and reviewed by the examiner. The examiner shall then obtain from the Veteran a description of his relevant history and symptomatology, to include information about onset, frequency, duration, and severity as applicable. All tests, studies, or evaluations deemed necessary next shall be performed. This shall include, at a minimum, those concerning nerve impairment to include of the radial nerve with respect to the right thumb. The examiner thereafter shall opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current bilateral knee disability: (a) was incurred during his service, (b) otherwise is related to his service, to include through continuity of symptomatology, (c) was caused by his service-connected low back disability, or (d) was aggravated (permanently worsened beyond natural progression) by his service-connected low back disability. If aggravation is found, the examiner further shall opine as to: (a) the baseline level of disability prior to the aggravation and (b) the current level of disability. It is noted that this is necessary so that the amount of disability attributable solely to the aggravation may be determined. With respect to the Veteran's low back disability, the examiner shall opine as to whether or not there is any associated objective neurologic abnormality in the form of lower extremity sciatica/radiculopathy or erectile dysfunction. With respect to the Veteran's right thumb disability, the examiner shall opine as to the correct diagnosis. A complete and clear rationale (explanation) shall be provided for each opinion rendered. This shall include discussion of the pertinent medical evidence (service, VA, and private treatment records, SSA records, and VA medical examinations and opinions) and non-medical or lay evidence (statements from the Veteran). At a minimum, the March 2008 and March 2009 VA treatment records set forth above must be discussed with respect to the Veteran's current bilateral knee disability. The VA treatment record and medical examination findings both of normal gait and abnormal gait also must be discussed with respect to that disability. If an opinion cannot be provided without resort to mere speculation, a complete and clear rationale (explanation) for why this is so shall be provided. In so doing, it specifically shall be indicated whether or not the inability to render the opinion is the result of a need for additional information or of the limits of current medical knowledge having been exhausted. Each of the above actions shall be documented fully in a VA examination report. A copy of such report shall be placed in the claims file or "eFolder." 4. Finally, readjudicate the Veteran's entitlement to service connection for a bilateral knee disability, to a compensable evaluation for a right thumb disability, and to an evaluation in excess of 40 percent for a low back disability. If service connection is not granted and/or one or both maximum evaluations is not assigned, he and his representative shall be provided with a supplemental statement of the case (SSOC), afforded the requisite time period to respond, and a copy of the SSOC shall be placed in the claims file or "eFolder." The Veteran has the right to submit additional evidence and argument on the issues 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. 2012). _________________________________________________ Michael J. Skaltsounis 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) (2012).