Citation Nr: 1303701 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 09-34 218 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected chondromalacia of the left knee with degenerative changes. 2. Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected chondromalacia of the left knee with degenerative changes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1971 to September 1975. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. That decision, in pertinent part, denied entitlement to service connection for a right knee disorder and a lumbar spine disorder, both to include as secondary to the service-connected left knee disorder. A Board hearing was held on May 22, 2012, in Phoenix, Arizona, before the undersigned Acting Veterans Law Judge (VLJ), who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. A current review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. In this case, the Veteran testified in May 2012 that he is receipt of disability benefits from the Social Security Administration (SSA) due to his knees and back. However, the claims file does not contain a copy of any decision to grant SSA benefits or the records upon which a decision was based. Under 38 U.S.C.A. § 5107(a), VA's duty to assist specifically includes requesting information from other Federal departments or agencies. Where there has been a determination that a veteran is entitled to SSA benefits, the records concerning that decision are often needed by VA for evaluation of pending claims and must be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Therefore, the RO should obtain and associate such records with the Veteran's claims file. It also appears that there may be additional treatment records that are not associated with the claims file. In this regard, the Veteran testified in May 2012 that he sought treatment for his right knee approximately six months to one year after service through the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS). However, the evidence of record does not include any medical records documenting such treatment. Similarly, the Veteran stated that he has been prescribed medication for his right knee by his general physician at the Tucson VA Medical Center. The most recent VA treatment records associated with the claims file are dated in July 2009, and the record does not contain any treatment notes from the physician that he identified. Moreover, the Veteran testified in May 2012 that he submitted private treatment records from dated around 1993, which he stated was the time of his first knee surgery (right knee) followed by a second surgery (left knee) around 2003. The current private treatment records associated with the claims file do not appear to date back beyond 2003. Furthermore, VA's duty to assist includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The Veteran asserted at his May 2012 hearing that his right knee and back disorders both began in service and continued since that time. Thus, direct and secondary service connection theories should be considered and addressed accordingly. By way of background, the Veteran was afforded a VA examination for his right knee and back in March 2008. The VA examiner diagnosed the Veteran with mild degenerative joint disease of the right knee and opined that it is less likely than not that the right knee condition is related to his service-connected left knee disability, as the left knee disorder was not likely to have resulted in a gait disturbance of adequate magnitude to cause the severity of degenerative changes noted in the right knee. With respect to the back disorder, the Veteran reported to the examiner that his condition began in 1989. The examiner diagnosed the Veteran with a lumbar spine strain with mild degenerative disc disease and moderate degenerative joint disease. The examiner opined that it is less likely than not that the lumbar spine disorder is related to his service-connected left knee disability because the left knee condition was not likely to have resulted in a gait disturbance of adequate magnitude to cause the severity of degenerative changes seen in the lumbar spine. The RO requested an additional medical opinion in September 2008. The medical report revealed that the physician who reviewed the case file considered the Veteran's post-service civilian career as a lighting technician as his military occupational specialty (MOS), and thus, provided an opinion based on an incorrect MOS. The Board finds that an additional VA examination and medical opinion are necessary in this case. Specifically, at the May 2012 hearing, the Veteran asserted continuity of symptomatology for both conditions since service, stating that he experienced popping and clicking of his right knee during service and experienced back problems from performing his military duties as a security specialist. Moreover, the previous VA examiners did not address whether the Veteran's service-connected left knee disability may have aggravated his right knee or lumbar spine disorders. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain a copy of the decision to grant SSA benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. 2. The RO should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a knee or back disorder. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. A specific request should be made for treatment records dated between 1975 and 1976 and any treatment records from Ironwood Pain Clinic (may contract with VA). A request should also be made for medical records documenting the Veteran's knee surgeries between the 1980s and 2003. All outstanding VA medical records dated from July 2009 to the present should also be obtained. If, after making as many requests as are necessary to obtain these records, it is determined that the records sought do not exist or that further efforts to obtain those records would be futile, the RO/AMC should issue a Formal Finding on the Unavailability of Records Memorandum consistent with 38 C.F.R. § 3.159(e)(1), identifying: (i) the identity of the records VA was unable to obtain; (ii) an explanation of the efforts VA made to obtain the records; (iii) a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the Veteran submits the records VA was unable to obtain; and (iv) a notice that the Veteran is ultimately responsible for providing the evidence. Otherwise, all obtained records must either be printed and associated with the Veteran's paper claims file, or uploaded into the Veteran's Virtual VA Electronic claims folder contained in the Virtual VA system. 3. After completing the requested development in the preceding paragraphs, the Veteran should be afforded a VA examination to determine the nature and etiology of any right knee disorder or lumbar spine disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, his post-service medical records, and all lay statements. It should be noted that the Veteran has contended that his right knee and back disorders manifested in service and have continued since that time. In the alternative, he has argued that they are secondary to his service-connected chondromalacia of the left knee with degenerative changes. The Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After reviewing the claims file and examining the Veteran, the examiner should provide an opinion and address the following: * Whether it is at least as likely as not that the Veteran's current right knee disorder is causally or etiologically related to his military service, including any complaints of knee pain during service * Whether it is at least as likely as not that the Veteran's current lumbar spine disorder is causally or etiologically related to his military service, including his duties therein and his statements regarding the onset of symptoms * Whether it is at least as likely as not that the Veteran's right knee disorder was either caused or permanently aggravated by his service-connected left knee disability. The examiner should consider the Veteran's statements that he favored one knee over the other knee during the course of multiple surgical procedures and any other statements attesting to symptomatology * Whether it is at least as likely as not that the Veteran's lumbar spine disorder was either caused or permanently aggravated by his service-connected left knee disability. The examiner should consider the Veteran's statements as to his altered gait following multiple surgical procedures to his knees The examiner should note that aggravation is defined for legal purposes as a permanent worsening of the underlying condition beyond the natural progress of the disorder, versus a temporary flare-up of symptoms. If the examiner determines that the right knee disorder or lumbar spine disorder was aggravated by the service-connected left knee disability, the examiner should identify the level of disability caused by the right knee or lumbar spine, to the extent possible. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing the above actions, the RO should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 5. When the development has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant 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). 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). _________________________________________________ JESSICA J. WILLS 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).