Citation Nr: 1310356 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 04-04 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for a low back disorder, to include as due to a left knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant (Veteran) ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty from April 1985 to October 1986. This matter comes before the Board of Veterans' Appeals (Board) from an October 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, that continued the denial of the Veteran's previously denied claim of entitlement to service connection for degenerative arthritis of the right knee and denied the Veteran's claims of entitlement to service connection for osteoarthritis of the left knee and service connection for low back pain. By a March 2007 Board decision, the Veteran's previously denied claim of entitlement to service connection for degenerative arthritis of the right knee was reopened on the basis that new and material evidence had been submitted. Also, by the March 2007 Board decision, the issues of entitlement to service connection for degenerative arthritis of the right knee, osteoarthritis of the left knee, and a low back disability, to include as due to osteoarthritis of the left knee, were remanded for additional development. The Board, in an April 2009 decision, denied the Veteran's claims of entitlement to service connection for degenerative arthritis of the right knee, osteoarthritis of the left knee, and a low back disorder, to include as due to osteoarthritis of the left knee. The Veteran appealed the Board's April 2009 decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2010 Order, the Court granted a July 2010 Joint Motion for Remand (JMR) as to each of the claims, vacated the Board's April 2009 decision, and remanded the claims to the Board for readjudication in accordance with the JMR. In November 2011, the Board again remanded the Veteran's appeal to the RO for further development. The record indicates that the RO complied with the Board's requests, specifically by scheduling the Veteran for a hearing before a Veterans Law Judge seated at the RO in Newark, New Jersey; obtaining and associating with the claims file VA treatment records maintained by the VA Medical Center (VAMC) in East Orange, New Jersey, dated from August 2006; and providing the Veteran with a VA medical examination to determine the nature and etiology of the Veteran's claimed left knee, right knee, and low back disorders. In June 2012, the Veteran testified before the undersigned Veterans Law Judge, seated at the RO in Newark, New Jersey. This case was most recently before the Board in August 2012, wherein it was remanded for additional development. The record indicates that the RO complied with the Board's request; the Veteran's records related to his receipt of Social Security Administration benefits and his outstanding VA treatment records from the VAMC in New York have been obtained. The case was returned to the Board for appellate consideration. The Board finds that still further development is required. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of pertinent records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As noted in the previous Board remands in November 2011 and August 2012, the Veteran seeks service connection for right and left knee disabilities, as well as a low back disability, to include as secondary to a left knee disability. In February 2012, the Veteran underwent a VA examination in connection with his claims. However, upon further review, the Board finds that the VA examination report does not fully address all of the questions presented by the November 2011 Board remand to the extent required by the Court's JMR. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). A Veteran is presumed in sound condition except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C.A. § 1111 (West 2002); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. The U.S. Court of Appeals for Veterans Claims (Court) in Horn v. Shinseki, explained that even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness. Rather, the burden is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. 25 Vet. App. 231, 235 (2012). On the other hand, where a disorder is noted on service entrance or a Veteran is otherwise not presumed sound on entrance, 38 U.S.C.A. § 1153 applies. In such claims, the evidence of record must simply show that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). "If the presumption of aggravation under section 1153 arises, the burden then shifts to the government to show a lack of aggravation by establishing 'that the increase in disability is due to the natural progress of the disease.'" Wagner, 370 F.3d at 1096 (citing 38 U.S.C.A. § 1153 ). This requires the government show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); Horn v. Shinseki, 25 Vet. App. at 235 (2012) ("Once the Veteran establishes worsening, the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease."); see also 38 C.F.R. § 3.306(b) (2011). Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The factual background regarding the claimed disorder was summarized in the Board's June 2011 remand decision which requested a VA examination to answer a number of questions. The evidence indicates that at the time of entry into service in April 1985, the Veteran reported a history of left leg length discrepancy and surgical revision. Right knee and back conditions were not noted at entry. The February 2012 VA examination report discussed the Veteran's pre-service, service and post-service medical history. The examiner reviewed the claim file and provided opinions regarding the claimed left knee, right knee and back disorders. The opinion does not fully answer the questions asked and further responses are needed to insure that all of the medical questions in this case are fully addressed. In the opinion, the examiner determined that a leg length discrepancy, noted at entrance, existed prior to service and was not aggravated or worsened during service. The VA examiner found that the left leg length discrepancy noted on entry into service, did not increase in the underlying pathology during active service. The examiner also opined as that it was unlikely that any current right knee or low back disability has been aggravated by any current left knee disability. However, he did not opine whether the evidence against aggravation is clear and unmistakable (evidence that is obvious and manifest). Regarding the right knee and back conditions, the examiner noted that the leg length discrepancy but stress on both knees and lumbosacral strain prior to service and even after discharge from service. The examiner noted that he did not believe that any of the Veteran's preexisting disabilities or injuries such as both knee and lumbosacral strain were aggravated or worsened by his active service. With regard to the claimed right knee disorder, the VA examiner appeared to indicate that the right knee condition preexisted service but did not clearly indicate what disorder was preexisting. The examiner did not answer the question as to whether the Veteran's private treatment records dated in October 1977 demonstrating that he presented with a right leg shorter than the left leg, or October 1985 X-ray evidence of arthritis six months subsequent to entry into service, indicate that a right knee disability clearly and unmistakably preexisted the Veteran's entry into service, and if so, whether the right knee disability underwent an increase in the underlying pathology during his active service (i.e., was aggravated) during service, and whether such an increase was clearly and unmistakably due to the natural progress of the disease. The VA examiner also did not indicate whether, if a preexisting right knee disability did not undergo an increase during active service, whether the evidence against aggravation is clear and unmistakable. The VA examiner also did not provide an opinion as to whether any current left knee or low back disability has been aggravated (made permanently worse beyond the natural progression of the disease) by any current right knee disability. With regard to the claimed low back disorder, the VA examiner appeared to indicate that a back condition preexisted service but did not clearly indicate what disorder was preexisting. The examiner did not answer the question as to whether the Veteran's October 1977 records showing compensatory scoliosis indicated that the Veteran's low back disability clearly and unmistakably preexisted service, and if so, whether it was aggravated by service. If there is no clear and unmistakable evidence of a preexisting low back disability, it remains unclear if any low back disability found present is related to active service, including in-service knee complaints or current knee disabilities. Similarly, the VA examiner did not address whether any back disorder, other than the scoliosis, is related to service, and whether any current left knee or right knee disability has been aggravated (made permanently worse beyond the natural progression of the disease) by any current low back disability. VA adjudicators may consider only independent medical evidence to support their findings; they may not rely on their own unsubstantiated medical conclusions. If the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Therefore, an addendum medical opinion is necessary to adequately address the Veteran's claims of entitlement to service connection for left knee, right knee, and low back disabilities. Accordingly, the Board finds that the RO should ask the examiner who conducted the February 2012 VA examination or a suitable replacement (a VA physician) to prepare an addendum and provide a medical opinion as to the Veteran's claimed left and right knee disorders, and low back disorder . See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). See Guerrieri v. Brown, 4 Vet. App. 467 (1993) (the probative value of the medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing data, and the medical conclusion that the physician reaches). Accordingly, the case is REMANDED for the following action: 1. Contact the examiner who conducted the February 2012 VA examination or a suitable replacement (a VA physician) and ask the examiner to prepare an addendum and provide a medical opinion as to the following: (a) Whether the evidence that the Veteran's preexisting left leg disability, his left leg length discrepancy noted on entry into service, did not undergo an increase in the underlying pathology during his active service is clear and unmistakable (evidence that is undebatable, obvious and manifest). (b) Whether the Veteran's private treatment records dated in October 1977 demonstrating that he presented with a right leg shorter than the left leg, or October 1985 X-ray evidence of arthritis six months subsequent to entry into service, indicate that a right knee disability clearly and unmistakably preexisted the Veteran's entry into service. If so, based on a review of the records, the examiner should identify the right knee disability and must opine if the preexisting right leg disability underwent an increase in the underlying pathology during his active service, i.e., was aggravated during service. (c) If a preexisting right knee disability did not undergo an increase during active service (i.e., was not aggravated), the examiner must opine if the evidence against aggravation is clear and unmistakable. If there was an increase in severity of a preexisting right knee disability during active service, the examiner must opine if the increase was clearly and unmistakably due to the natural progress of the disease. (d) The VA examiner must also opine as to whether it is at least as likely as not (at least a 50 percent probability) that any current left knee or low back disability has been aggravated (made permanently worse beyond the natural progression of the disease) by any current right knee disability. (e) Whether the Veteran's private treatment records dated in October 1977, demonstrating that he presented with compensatory scoliosis, indicate that a low back disability clearly and unmistakably preexisted the Veteran's entry into service. If so, based on a review of the records, the examiner must opine if the preexisting low back disability underwent an increase in the underlying pathology during his active service. (f) If a preexisting low back disability did not undergo an increase in severity during active service, the examiner must opine if the evidence against aggravation is clear and unmistakable. If there was an increase in severity of a preexisting low back disability during active service, the examiner must opine if the increase was clearly and unmistakably due to the natural progress of the disease. (g) As to any low back disability that did not preexist the Veteran's service, the examiner must opine as to whether it is at least as likely as not (at least a 50 percent probability) that any low back disability found present was incurred in service, or is otherwise related to service. (h) The examiner must also opine as to whether it is at least as likely as not (at least a 50 percent probability) that any current left knee or right knee disability has been aggravated (made permanently worse beyond the natural progression of the disease) by any current low back disability. The VA claims folder must be made available to the examiner for review in connection with the addendum opinion. If the VA examiner determines that further examination is necessary in order to render the requested medical opinion, the RO should schedule the Veteran for such an examination by a VA physician. A rationale must be provided for all findings and conclusions reached. The examiner should identify and explain the medical basis for the opinion, identify the pertinent evidence of record, and include any applicable medical treatises referenced. 2. Following the completion of the above to the extent possible, readjudicate the Veteran's claims of service connection for a left knee disorder, right knee disorder, and low back disorder. If the benefits sought on appeal remain denied, the Veteran and his representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The purpose of this remand is to further develop the record and afford due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant 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 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). _________________________________________________ K. J. ALIBRANDO 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).