Citation Nr: 1307630 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 10-41 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a bilateral shoulder disorder, to include as secondary to a service-connected thoracolumbar spine disability. 2. Entitlement to a rating in excess of 20 percent for Scheuermann's disease of the thoracolumbar spine. 3. Entitlement to a rating in excess of 10 percent for residuals of a left torn anterior attachment of the medial meniscus. 4. Entitlement to a compensable rating for chronic sinusitis. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1975 to May 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in August 2008 and October 2010 by the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required on his part. REMAND VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duties to notify and assist and of the information and evidence necessary to substantiate his claims by correspondence dated in December 2007 and September 2010. VA's duty to assist requires reasonable efforts to assist claimants in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159 (2012). A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4). The types of evidence that indicate that a current disability may be associated with military service include credible evidence of continuity and symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. VA, however, will not concede a nonservice-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. 38 C.F.R. § 3.310(b). The Veteran contends that he has bilateral shoulder disorders that developed as a result of his service-connected thoracolumbar spine disability. He stated his private medical care providers had indicated they were connected; however, no nexus opinions were included in the treatment records obtained. As his statements indicate an association with service and the threshold for VA's duty to assist in obtaining a medical opinion is low, the Board finds additional development as to this matter is required prior to appellate review. The Veteran also contends that the January 2008 VA examination for his increased rating claims was inadequate and private treatment records obtained in support of his claims show he subsequently complained of worsening symptom manifestations. The Board notes that the January 2008 VA examination findings cannot be reconciled with the private treatment evidence of record as to the neurologic manifestations of the Veteran's service-connected back disability and as to the required treatment he has received for his sinusitis disability. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. Therefore, additional medical examinations are required for adequate determinations. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers, VA and non-VA, who provided any treatment pertinent to the issues on appeal. After the Veteran has signed the appropriate releases, any indicated records should be obtained and associated with the claims folder. Appropriate efforts must be taken to obtain pertinent VA treatment records, unless further efforts would be futile. All attempts to procure records should be documented in the file. If the records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts to allow him the opportunity to obtain and submit those records for VA review. The Veteran should be advised that he may obtain and submit a statement or statements from his private medical care providers concerning a nexus between his bilateral shoulder disorders and his service-connected thoracolumbar spine disability. 2. Following completion of the above, obtain a VA medical opinion, to include any necessary examinations or tests, as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a present shoulder disability as a result of active service or that is proximately due to or aggravated by a service-connected disability. The examiner must review the claims file and note that review in the report. Opinions should be provided based on any examination findings; the credible lay evidence of prior injuries, symptom manifestation, and treatment; a review of the medical evidence of record; and sound medical principles. All findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 3. Following completion of the development requested in paragraph 1, above, schedule the Veteran for an appropriate VA examination or examinations for opinions as to the nature and extent of his service-connected thoracolumbar spine, left knee, and sinusitis disabilities. All indicated tests and studies are to be performed, to include thoracolumbar spine and left knee range of motion studies. All manifest neurologic symptoms associated with the thoracolumbar spine disability and episodes of sinusitis that are incapacitating or non-incapacitating or require antibiotic treatment per year must be identified. Each examiner must review the claims file and must note that review in the report. Opinions should be provided based on the results of examination; the credible lay evidence of prior injuries, symptom manifestation, and treatment; a review of the medical evidence of record; and sound medical principles. All examination findings, with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all evidence of record. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). _________________________________________________ BARBARA B. COPELAND 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).