Citation Nr: 1308612 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 10-00 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a back disability, to include as secondary to the Veteran's service connected left knee disability. 2. Entitlement to an evaluation in excess of 20 percent for impairment of the left knee, discoid lateral meniscus, with chondromalacia patella. 3. Entitlement to an evaluation in excess of 20 percent for osteoarthritis of the left knee. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from January 1971 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision of the Phoenix, Arizona, regional office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge in January 2013. A transcript of this hearing is contained in the Veteran's electronic record (Virtual VA). 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 contends that his service connected left knee disability has increased in severity to such an extent that the 20 percent evaluations that are currently assigned do not adequately reflect the resulting impairment. Furthermore, he contends that in October 2008 his left knee buckled and caused him to fall, which either aggravated a pre-existing back disability or caused a new disability in another portion of the spine. Initially, the Board notes that the Veteran testified at the January 2013 hearing that he sought and obtained Social Security disability benefits after his October 2008 fall. There has been no attempt made to obtain from the Social Security Administration (SSA) the decision to award the Veteran disability benefits or the records used to reach this decision. The Courts have imposed a virtually absolute duty to obtain SSA decisions and underlying medical records. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Voerth v. West, 13 Vet. App. 117, 121 (1999); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). The Veterans Claims Assistance Act of 2000 (VCAA) also requires that as many requests as necessary be made to obtain relevant records from a Federal department or agency. 38 C.F.R. § 3.159(c)(2) (2012). Therefore, as these records may have some bearing on both of the Veteran's disabilities, an attempt must be made to obtain them and associate them with the claims folder. Furthermore, the Board notes that the Veteran testified he sustained an injury that resulted in two herniated discs while working for a private employer in approximately 1998. Other evidence including VA treatment records and a January 2013 private opinion indicate that the Veteran underwent surgery to repair those discs in 1998. However, the records regarding the initial injury and the subsequent surgery have not been obtained. The Board finds that the Veteran should be provided an opportunity to either submit these records, or to identify them and have VA obtain them on his behalf. The record shows that there are two medical opinions pertaining to the etiology of the Veteran's back disability contained in the claims folder. These are a January 2009 VA examination report with a January 2009 addendum, and a January 2013 opinion from one of the Veteran's private doctors. Unfortunately, the Board finds that for several reasons, each of these opinions is flawed to an extent that they may not be relied upon to reach a decision in this case. First, as they are not in the claims folder or Virtual VA, it is not apparent that either of the examiners have had an opportunity to examine the records pertaining to the Veteran's 1998 injury and surgery, or the records relied on by the SSA to award the Veteran his disability benefits. Next, the January 2013 examiner states that the Veteran's back disability was cured following the 1998 surgery, so that the current disability is an entirely new disability that is the result of the 2008 injury. However, he did not address VA treatment records dated from 2002 to 2003 that show ongoing complaints and treatment for low back pain, to include an October 2002 record stating that the Veteran would jump with pain with even a mild touch to the low back. These records would seemingly contradict the examiner's opinion that the back was cured following the 1998 surgery. As an opinion based upon an inaccurate factual premise has no probative value, the January 2013 opinion standing alone does not provide a basis for an allowance. Reonal v. Brown, 5 Vet. App. 458, 460-461 (1993), see also LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Finally, the January 2009 VA examination report and addendum found that it was less likely than not that the Veteran's back disability was caused or aggravated by the October 2008 fall. However, the examiner did not mention the Veteran's service treatment records. These show that the Veteran received treatment in service in March 1971 for what was characterized as a "history of chronic back pain". The diagnosis was lumbosacral strain. No further treatment in service was shown and the Veteran did not receive a discharge examination. Given the absence of any post service evidence of a back disability for many years after discharge this evidence is insufficient to allow for a grant at this juncture, but it does raise the possibility of service connection on a direct basis. This was not addressed by the January 2009 examiner. Furthermore, while a second examination in service also found the spine to be normal, it made reference to a questionable history of arthritis of the lumbar spine as a child, with no residuals. The date of this examination was January 19, but it is not clear if the year was 1971 or 1972, as that portion of the date was omitted from the photostatic copy. This raises the possibility that the back disability existed prior to service. An additional examination that would address these matters must be scheduled. At this point, the Board notes that the Veteran's December 1970 entrance examination found the Veteran's spine to be normal. By law and regulation, the Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). Therefore, the Veteran is presumed to have been sound on entry into service. In order to rebut the presumption of soundness, the evidence, whatever it may be, must lead, clearly and unmistakably, to the conclusion that the injury or disease existed before the Veteran entered the service. Harris v. West, 203 F. 3d 1347 (2000). In regards to the Veteran's left knee disabilities, his most recent VA examination was conducted in January 2009. More than four years have passed since this examination. Furthermore, private medical records from 2010 show that the Veteran's left knee pain became so severe that he underwent a series of injections over a period lasting several months. This suggests that his left knee disability had increased in severity since the January 2009 examination. The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Accordingly, for all the reasons cited above, the case is REMANDED for the following action: 1. Obtain a copy of the decision to award the Veteran SSA disability benefits. Copies of the medical records relied on to reach this decision should also be obtained. Associate these with the record. 2. The RO should obtain the names and addresses of all medical care providers who treated the Veteran for his back disability and knee disability since 1998. Of particular interest are the medical records pertaining to his 1998 work-related back injury, to include the records of his 1998 surgery. After securing the necessary release, the RO should obtain these records. The Veteran should also be notified that he may submit these records on his own, and that it is ultimately his responsibility to obtain and submit any records from private sources. 3. Schedule the Veteran for a VA examination of his spine. The claims folder and record contained in Virtual VA must both be made available to the examiner, and the examiner must indicate that they have been reviewed. All indicated tests and studies should be conducted. After completion of the examination and review of the record, the examiner should attempt to express the following opinions on the assumption that the Veteran was sound with a normal back upon entering active service. a) Is there clear and unmistakable (undebateable) evidence that the Veteran's back disability existed prior to entering active service? b) If the answer to (a) is yes, it there clear and unmistakable evidence that the Veteran's pre-existing back disability was not aggravated (permanently increased in severity beyond the natural course of the disability) due to active service? c) If the answer to (a) is no, is it as likely as not that the Veteran's current back disability was incurred due to active service? d) If the answers to both (a) and (c) are negative, is it as likely as not that the Veteran's current back disability was incurred due to the October 2008 fall that was the result of his service connected left knee disability? e) If the answers to (a), (c), and (d) are negative, is it as likely as not that any pre-existing back disability was aggravated due to the October 2008 fall that was the result of the Veteran's service connected left knee disability? If yes, is it possible to establish a baseline level of disability for the back disability prior to the fall? If this is possible, please describe the baseline level of severity prior to the October 2008 injury. The reasons and bases for all opinions should be provided. Any negative opinion must discuss the significance of the back treatment in service, as well as the January 2013 private medical opinion from Dr. F. If the examiner is unable to provide any portion of the requested opinion without resort to speculation, the reasons and bases for that conclusion should be provided. Any missing evidence required to provide the requested opinion should also be identified. 4. Schedule the Veteran for a VA examination of his left knee disability. The claims folder and record contained in Virtual VA must both be made available to the examiner, and the examiner must indicate that they have been reviewed. All indicated tests and studies should be conducted. The information necessary to evaluate the Veteran's left knee disabilities should be provided, to include the range of motion of the knee and descriptions of the impairment due to instability or subluxation. Any additional impairment due to pain, weakness, incoordination or excess fatigability should be described in terms of additional loss of motion. 5. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Veteran 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). _________________________________________________ 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).