Citation Nr: 1304429 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-32 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected lumbar spinal fusion. 2. Entitlement to service connection for a bilateral knee disorder. 3. Entitlement to a rating in excess of 20 percent for lumbar spinal fusion L4-L5 with scar. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2002 to March 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 Regional Office (RO) in Newington, Connecticut, rating decision, which granted service connection for the Veteran's lumbar spine disability, and assigned a disability rating in August 2009. The decision also denied the claims for service connection of neck and knee disabilities. The Veteran testified before a Decision Review Officer at the RO in October 2010 and before the undersigned Veterans Law Judge at the RO in December 2011. Transcripts of both hearings are present within the claims file. 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 In this case the Veteran asserts an increased rating for her service-connected lumbar fusion is warranted, as well as claims for service connection of her knees and neck either related to service or to her service-connected back disability. The Board notes that the Veteran underwent VA examinations in November 2009 and 2010 to determine the nature and severity of her claimed disorders. The November 2010 examination also ordered an EMG to determine if there are any neurological issues related to the Veteran's service-connected lumbar spine fusion. The EMG report noted that the Veteran has chronic back pain due to severe muscle spasms, and not due to disk herniation. However, during the December 2011 Travel Board hearing, the Veteran reported she was seeing a neurologist and that she was having another EMG in January 2012. As any updated EMG reports could support the Veteran's assertion that she has neurological issues related to her service-connected back disorder, the outstanding records should be associated with the claims file. During a November 2009 VA examination, the Veteran reported problems with her neck approximately 10 years prior. The examiner noted she was not on active duty. The Veteran denied injury to her neck. She complained that every once in a while she will have to "crack" her neck because it gets tights and sore. She has no pain in the neck. After physical examination, the diagnosis was cervical strain prior to active duty. The examiner further noted no aggravation while on active duty, no complaints of pain, and no functional loss or limitations. Though the examiner noted the Veteran had cervical strain prior to active duty, the examiner was not clear whether the cervical strain was acute and therefore resolved prior to service, or whether the cervical strain was a current chronic disorder. The Board finds another VA opinion is necessary to determine if the Veteran has a current neck disorder, and, if so, whether that disorder was due to aggravated by active service to include a back injury. Furthermore, since the claim for a lumbar spine disorder is being remanded to obtain relevant records, and because a VA examination is being ordered for the neck, the Board finds that the new examination should also include evaluation of the service-connected lumbar spine disorder. During a December 2011 Travel Board hearing, the Veteran testified that she was receiving ongoing physical therapy at the VA; however, there are no VA treatment records in the claims file. The AMC should make an effort to obtain any outstanding VA or private treatment records related to the Veteran's claimed back disorder. During the December 2011 Travel Board hearing, the Veteran also testified that she has orthopedic pain in her knees that she believes is either related to her active service or her in-service injury. The Board notes that the two VA examinations only addressed orthopedic claims of the neck and back. VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. See 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As the bar to trigger VA's duty to provide an examination under McLendon is low, the lay report that the Veteran has bilateral knee pain continuously since service is sufficient to provide an 'indication' that her current bilateral knee disability may be associated with an in-service event. See 38 C.F.R. § 3.159(c)(4). As such, the Veteran should be provided a VA examination to determine whether she has a current bilateral knee disorder, and, if so, whether her current right knee and left knee disabilities are etiologically related to her active service, to include as secondary to an in-service back injury. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and request that she identify any additional medical treatment she has received for her lumbar spine and right and left knee disabilities. The RO should take appropriate steps to secure copies of any such treatment reports identified by the Veteran which are not in the record on appeal, to include any existing relevant updated VA treatment records. Efforts to obtain these records should be memorialized in the Veteran's VA claims folder. These efforts should include an attempt to obtain the EMG report and physical therapy records noted above. 2. The RO should then schedule the Veteran for a physical examination(s) to determine the current severity of her service-connected lumbar spine and the etiology of her claimed knee and neck disorders. The Veteran's VA claims folder and a copy of this Remand should be made available to, and should be reviewed by the examiner. Upon review of the record and examination of the Veteran, the examiner should specifically identify (1) the ranges of motion of the Veteran's lumbar spine, including motion accompanied by pain, in degrees; (2) any identifiable functional impairment, including upon repetitive testing, due to pain, incoordination, weakened movement, and excess fatigability on use; and (3) the frequency and duration of any incapacitating episodes occurring during the past 12 months requiring bed rest prescribed by a physician and treatment by a physician. The examiner should also specifically assess the severity of all associated neurological symptomatology, to include the Veteran's claimed right and left lower extremity radiculopathies. For the Veteran's claimed neck/cervical spine disorder, the examiner should elicit from the Veteran a history of her symptoms and onset relating to her claimed neck disorder. After reviewing the file, examining the Veteran, and noting her reported history of symptoms, the examiner should report whether the Veteran has a diagnosed chronic neck/cervical spine disability. As to any chronic neck/cervical spine disability identified, the examiner should offer an opinion as to whether such disability clearly and unmistakable preexisted service. If so, the examiner should offer an opinion as to whether such disability clear and unmistakably was not aggravated in service. If any chronic neck/cervical spine disability found on examination did not preexisted service, the examiner should an opinion as to whether it is at least as likely as not that any such disability had its onset in service; is otherwise related to service; or was caused or permanently aggravated by a service-connected disability. For the Veteran's claimed knee disorder, the examiner should elicit from the Veteran a history of her symptoms and onset relating to her claimed knee disorder. After reviewing the file, examining the Veteran, and noting her reported history of symptoms, the examiner should report whether the Veteran has a diagnosed knee disability. Then, an opinion should be provided as to whether it is at least as likely as not that any of the Veteran's current knee disabilities had their onset during his military service or were otherwise related to her military service. If the Veteran is found to have a knee disability that did not originate in, and is not otherwise related to, her active duty, the examiner should then express an opinion as to whether it is at least as likely as not that any of the Veteran's current knee disabilities were caused or aggravated (permanently worsened beyond normal progression) by the Veteran's service-connected lumbar spinal fusion. If the Veteran is found to have a knee disorder that is aggravated by her service-connected lumbar spine disorder, the examiner should quantify the approximate degree of aggravation. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Following the completion of the foregoing, and after undertaking any other development it deems necessary, the RO should then readjudicate the Veteran's appeal. If any of the issues on appeal are denied, in whole or in part, the RO should provide the Veteran and his agent with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ MICHAEL LANE 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).