Citation Nr: 1308041 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 06-29 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a low back disorder, claimed as four cracked vertebrae, three crushed discs, and split S-1/pelvic area, secondary to service-connected recurrent dislocation of the left patella, meniscectomy and chondromalacia. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney-at-Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active service from March 1963 to May 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board notes that the Veteran's appeal was previously before it in June 2010 at which time it rendered a decision denying the issue of service connection for a low back disorder (as listed on the title page), in addition to the following issues: (1) claim to reopen for service connection for a left shoulder disorder; (2) service connection for a right shoulder disorder; (3) service connection for a respiratory disorder, claimed as asthma; and (4) compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for damage to autonomic nervous system, manifested tachycardia and bradycardia claimed as due to medications prescribed by VA. The Veteran appealed to the Court of Appeals for Veterans Claims (Court) but only as to the claim to reopen for service connection for a left shoulder disorder and the claims for service connection for a right shoulder disorder and a low back disorder. In a Memorandum Decision issued in November 2011, the Court upheld the Board's denial of the claim to reopen for service connection for a left shoulder disorder and its denial of service connection for a right shoulder disorder; however, as to the issue of service connection for a low back disorder, it found that remand of this issue was warranted for the Board to provide a medical examination or explain why one is not warranted. As to the remaining two issues addressed in the Board's June 2010 decision, the Court deemed them to be abandoned as the Veteran presented no argument as to these matters. Consequently, the only issue remaining on appeal before the Board is the issue of service connection for a low back disorder. 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 As previously mentioned, the Court found that the Board erred in not explaining why an examination was not warranted. Thus, in its November 2011 Memorandum Decision, the Court vacated the Board's June 2010 decision as to the issue of service connection for a low back disorder (as listed on the title page) and remanded that issue to the Board for it to either provide the Veteran with an examination or to explain why one is not warranted. Pointing to McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court noted that the statement in a worker's compensation memorandum decision that "[t]he carrier's orthopedic consultant, Dr. Retz, on 2-1-90 concluded that the claimant's disability was 50% causally related and that the other 50% was due to a left knee disability" appeared sufficient to satisfy McLendon's low threshold for nexus. The Board notes that VA's duty to assist includes obtaining a medical examination or medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. The third part could be satisfied by competent evidence showing post-service treatment for a condition or other possible association with military service. 38 C.F.R. § 3.159(c)(4). The threshold for establishing the third element is low for there need only be evidence that "indicates" that there "may" be a nexus between the current disability and military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In a recent written submission, the Veteran's attorney argues that the Veteran's claim should be granted based upon the evidence of record or, in the alternative, that it be remanded for a VA examination to be obtained. The Board finds that the statement is not at all clear enough to provide a basis for granting the claim for service connection for a back disorder. In this regard, the Board notes that the statement cited by the Court (the worker's compensation decision which cited a February 1990 medical record which concluded that the claimant's disability was 50% causally related and that the other 50% was due to a left knee disability) may be interpreted in two potential ways. The first interpretation, which is more favorable to the Veteran's claim for VA benefits, is that the Veteran's back disability was partially caused by an on-the job-injury and partially caused by his service-connected left knee disability. A second, unfavorable interpretation is that the statement in the worker's compensation decision simply intended to indicate that the Veteran was totally disabled from working with 50 percent of that disability being due to an on-the-job back injury and 50 percent of his disability being due to his service-connected knee injury. In other words, the medical record cited in the worker's compensation decision may not having been indicating that the back disorder was even partially caused by the Veteran's service-connected back injury. Thus, the statement from the worker's compensation decision is vague and does not lead the Board to conclude that the claim for service connection for a back disorder should be granted. Nevertheless, as noted above, in the Memorandum Decision the Court in this case made the first more favorable interpretation of the statement in the workman's compensation decision, and concluded that the evidence is sufficient to satisfy McLendon's low threshold for nexus evidence and, therefore, is sufficient to require that VA obtain a medical nexus opinion. Thus, remand for a VA examination with a nexus opinion is warranted. The Board notes that, in his brief, the Veteran's attorney specifically identifies evidence that the Board should direct the VA examiner to consider in rendering a nexus opinion. The VA examiner should be directed to the attorney's January 2013 written brief for the list of evidence. The Board notes for clarification purposes, however, that there is no "October 2010 Board Hearing transcript" as stated by the attorney. Rather the Board believes the attorney is referring to the transcript of an October 2008 hearing held at the RO before a Decision Review Officer. Furthermore, the Board notes the "May 13, 2003, Medical Record" referred to is a VA EMG Consult note of that date. Finally, before the VA examination is scheduled, the Board finds that further evidentiary development should be conducted. First, although the Veteran submitted a copy of the decision granting disability benefits by the Social Security Administration's Administrative Law Judge, which is dated in January 1990, no effort has been made to obtain the complete copy of the Veteran's administrative and medical records relating to his claim for Social Security disability compensation. As the Social Security Administration's Administrative Law Judge's decision clearly indicates that the decision granting disability benefits is in part based upon the Veteran's low back disorder resulting from the work-related injury in August 1985 (which is the basis of his claim presently before VA), the records relating to that claim are relevant to the Veteran's present claim. Thus, such should be undertaken on remand. In addition, although the Veteran submitted some New York Workers' Compensation records, including the one referencing the statement by the carrier's orthopedic consultant dated February 1, 1990, the Board notes that the actual report from this orthopedic consultant is not of record. There is also another report noted, that of the Veteran's orthopedist dated on July 20, 1990, in which this physician reportedly indicates that the Veteran had a permanent total disability. These reports would be beneficial to have as it would help the VA examiner understand the bases for these orthopedists' statements. Thus, the Board finds these medical reports to be highly relevant to the Veteran's claim. On remand, the Veteran should be asked to either provide VA with a release for it to obtain any available records from the New York Workers' Compensation Board or these records himself if he has them in his possession. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran's medical and adjudication records from the Social Security Administration related to his claim for disability benefits. Associate all correspondence and any records received with the claims file. 2. Contact the Veteran and request that he either provide VA with a release for it to obtain any available records relating to his workers' compensation claim with the New York Workers' Compensation Board or provide these records himself if he has them in his possession, especially any medical evidence related to his claim (specifically the February 1, 1990 report of the carrier's orthopedic consultant and the July 20, 1990, report from his orthopedist). If the Veteran provides a release of records to VA, then a request should be made to the New York Workers' Compensation Board (or any other appropriate New York agency) for records relating to the Veteran's claim for compensation due to a work related injury incurred in August 1985. A negative reply should be requested if records are not available. 3. After any attainable evidence has been associated with the Veteran's claims file, schedule the Veteran for a VA spine examination. The claims file must be provided to and reviewed by the examiner, who must indicate in his/her report that said review has been accomplished. All necessary tests and/or studies should be accomplished to determine the current nature of the Veteran's lumbar spine disorder. After reviewing the claims file and examining the Veteran, the examiner should render a diagnosis of all identified current disorders involving the lumbar spine. For each identified lumbar spine disorder, the examiner should render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that it is proximately due to, the result of or has been aggravated by the Veteran's service-connected disability or disabilities (it is noted the Veteran is service-connected for a left knee disability characterized as recurrent dislocation of patella, meniscectomy and chondromalacia and a right knee disability characterized as traumatic arthritis associated with the service-connected left knee disability). In rendering an opinion, the VA examiner is specifically directed to consider the evidence listed in the Veteran's attorney's January 2013 brief (as modified above in the body of this remand). The examiner should give a detailed explanation for the reasons for the opinion(s) provided. The medical reasons for accepting or rejecting the Veteran's theories of entitlement should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained. 4. Thereafter, the Veteran's claim should be readjudicated. If such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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 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. _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, only a decision of the Board 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).