Citation Nr: 1304476 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 05-07 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for residuals of a low back strain. 2. Entitlement to service connection for residuals of a left knee injury. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1972. This matter came to the Board of Veterans' Appeals (Board) from a September 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were remanded in September 2008 In a June 2010 decision, the Boar denied entitlement to service connection for residuals of a low back strain and residuals of a left knee injury. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an April 2012 Memorandum Decision, the Court vacated the Board's decision and remanded the matter for further proceedings consistent with the decision. 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 Veteran is claiming entitlement to service connection for residuals of a low back strain and left knee injury. He is a chiropractor and has reported self-treating over the years. Private treatment records In May 2004, the Veteran, in his capacity as a chiropractor, submitted his medical records from multiple private medical providers. The September 2008 Board Remand instructed the AMC to assist the Veteran in obtaining treatment records from Drs. Peter Quartarolo, John Grollmus and W. Scheidemann. In December 2008, the Veteran submitted VA Form 21-4142's pertaining to these three physicians; however, the AMC did not request the Veteran's treatment records from these providers: Thus, the Veteran should be requested to complete updated VA Form 21-4142's pertaining to Dr. Grollmus, Dr. Scheidemann and Dr. Quartarolo, and the Veteran's records should be requested directly from these medical providers. 38 C.F.R. § 3.159(c)(1) (2012). The Veteran should also be requested to complete VA Form 21-4142's pertaining to Marcia A. Luisi, M.D. and Robert W. Adams, D.C., DABCN, and the Veteran's records should be requested directly from these medical providers. Id. The Veteran should also be requested to identify any other private medical providers and complete an appropriate VA Form 21-4142 pertaining to each identified medical provider. VA examination reports Per the April 2012 Court's Memorandum Decision, the April 2005 and September 2009 VA examination reports have been deemed deficient for a number of reasons. Initially, the Board notes that the same VA examiner conducted both the April 2005 and September 2009 VA examinations. In April 2005, the VA examiner offered a negative etiological opinion with regard to the claimed low back disability, but in September 2009, and in a January 2010 addendum opinion, the VA examiner was unable to offer an opinion without resorting to speculation. This discrepancy, and the examiner's failure to explain the change in opinion, calls the reports and opinions into question. Second, in the April 2005 report, the examiner reported that a 1997 motor vehicle accident (MVA) "seems to have precipitated his symptoms" pertaining to the back. However, in the September 2009 report the examiner stated that the MVA "aggravated" his back disorder. There is also reference in the medical record pertaining to aggravation of his back disorder due to the MVA, rather than precipitation. As the VA examiner failed to provide a discussion of the record and provide an explanation for the conclusions, the opinions are deficient. Third, it was instructed in the September 2008 Remand that a VA examiner should discuss the Veteran's March 2006 statement, and February 2007 statement of William Levaditis, DC, in formulating an etiological opinion. There is no indication from the September 2009 VA examination report, or January 2010 addendum report, that such statements were discussed or even considered. Stegall v. West, 11 Vet. App. 268 (1998). Fourth, the VA examiner failed to consider the Veteran's statements, Dr. Levaditis' statement, and the Veteran's spouse's July 2005 statement with regard to a continuity of symptomatology in formulating an etiological opinion. Finally, the VA examiner failed to consider evidence pertaining to an earlier date of onset of left knee symptomatology. For these reasons, the Veteran must be afforded a new VA examination, with a different VA examiner, to assess the nature and etiology of his claimed back and left knee disabilities. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). VA treatment records In light of these matters being remanded, associate updated VA outpatient treatment records with the claims folder from the San Francisco, California VA Medical Center (VAMC) for the period from December 12, 2008. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and requested that he complete appropriate releases (VA Form 21-4142) pertaining to the following medical providers: a) John Grollmus, M.D.; b) W. Scheidemann, M.D.; c) Peter Quartarolo, D.C.; d) Marcia A. Luisi, M.D. e) Robert W. Adams, D.C., DABCN Upon obtaining appropriate releases from the Veteran, request the entirety of his treatment records from each medical provider. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. Ask the Veteran to identify any other private medical providers pertaining to his back and knee, and request that he complete appropriate releases pertaining to any identified medical providers. Then, request the entirety of the Veteran's treatment records from any identified medical provider. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 2. Associate with the claims folder or Virtual VA folder updated treatment records from the San Francisco VAMC for the period from December 12, 2008. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 3. After association of the above records with the claims folder, schedule the Veteran for a VA examination with a physician with appropriate expertise (other than the April 2005 and September 2009 VA examiner) to determine the nature and etiology of his claimed low back and left knee disorders. It is imperative that the entirety of the Veteran's claims folder, to include a copy of this Remand, be made available to the examiner and reviewed in conjunction with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. After reviewing the claims file and examining the Veteran, the examiner should respond as to the following: a) Please identify all disabilities associated with the low back and left knee. b) Did any low back disability at least as likely as not (a 50 percent or higher degree of probability) have its clinical onset during his period of service or is it otherwise related to the Veteran's period of service? c) Did any left knee disability at least as likely as not (a 50 percent or higher degree of probability) have its clinical onset during his period of service or is it otherwise related to the Veteran's period of service? In responding, the examiner should reconcile any opinion with and provide a discussion of the significance of the service treatment records; the Veteran's March 2006 statement explaining the medical basis for his chiropractic opinion; the February 2007 statement from Dr. Levaditis; the July 2005 lay statement from the Veteran's spouse, E.J.; and, private treatment records reflecting a MVA in 1997. All opinions and conclusions expressed must be supported by a complete rationale in a report; however, if the requested opinions cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. In the interest of avoiding future remand, the AMC/RO should then review the opinion and/or examination report to ensure that the above questions have been clearly answered and a rationale furnished for all opinions. If not, appropriate action should be taken to remedy any such deficiencies. 5. After completing the requested actions, and any additional notification and/or development warranted by the record, the AMC/RO should readjudicate entitlement to service connection for residuals of a low back strain and residuals of a left knee injury. If either of the benefits sought on appeal remain denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and affords the appropriate time period to respond. The Veteran and his representative have the right to submit additional evidence and argument on the 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). _________________________________________________ ERIC S. LEBOFF 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).