Citation Nr: 1310880 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 06-23 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a bilateral eye disorder. 3. Whether new and material evidence has been received to reopen a claim of service connection for a heart disorder. 4. Whether new and material evidence has been received to reopen a claim of service connection for arthritis. 5. Entitlement to an initial rating higher than 10 percent for left foot hallux valgus. 6. Entitlement to an initial rating higher than 10 percent for right foot hallux valgus. 7. Entitlement to a rating higher than 10 percent for left knee chondromalacia with mild degenerative joint disease. 8. Entitlement to a rating higher than 10 percent for right knee chondromalacia. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from January until June of 1978; and from October 1980 to October 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in July 2005 and March 2012 by a Department of Veterans Affairs (VA) Regional Office (RO). The July 2005 rating decision denied service connection for a bilateral eye disorder and a low back disorder. The March 2012 rating decision granted service connection for left and right foot hallux valgus with an evaluation of 10 percent, each foot; and denied the Veteran's request for a rating greater than 10 percent, each, for his left and right knee chondromalacia disabilities. The March 2012 rating decision also denied the Veteran's request to reopen previously denied claims for service connection for a cardiovascular disorder and arthritis on the grounds of no new and material evidence. In June 2010 the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in Albuquerque, New Mexico, regarding the issues of service connection for a bilateral eye disorder and a low back disorder. A transcript of the hearing is in the claims file. In a decision in January 2012, the Board denied the issue of service connection for a low back disorder and remanded the issue of service connection for a bilateral eye disorder for further development, including provision to the Veteran of a VA examination. The Veteran appealed the denial of his claim for service connection for a low back disorder to the United States Court of Appeals for Veterans Claims (Court). In September 2012 the parties filed a Joint Motion for Partial Remand to vacate and remand that part of the Board's January 2012 decision that denied service connection for a low back disorder; and in an Order dated in September 2012, the Court granted the parties' motion. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND With regard to the issue of service connection for a low back disorder, in its September 2012 Joint Motion the parties noted that the October 2010 VA examiner did not mention the fact that the Veteran had been diagnosed with probable lumbar strain during service. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (holding that the examiner "must consider the records of prior medical examinations and treatment in order to assure a fully informed examination"). In this regard, the Veteran's service treatment records show a sick call visit in July 1984 for low back pain after a long hike carrying a pack. The treating clinician found no evidence of spasms, and found that the Veteran could walk normally. The clinician's assessment was probable low back strain. The clinician treated the condition with pain medication and a five day light duty status. In a September 1984 medical history completed just prior to separation from service, the Veteran checked "no" for history of recurrent back pain. On the September 1984 service separation examination, the examiner checked "normal" for the condition of the Veteran's spine. In addition, medical evidence associated with the claims file after the Board's January 2012 review suggests that the Veteran's nonservice-connected back disorder may be secondary to his service-connected bilateral knee disabilities. See Schroeder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000) (holding that VA has an obligation to investigate all theories of entitlement). In accordance with 38 C.F.R. § 3.159(b), remand for notice pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) to the Veteran of the information and evidence needed to substantiate his claim for service connection for a low back disorder on a secondary basis is warranted. On remand all of the Veteran's VA treatment records dated after February 3, 2012, must be associated with the Veteran's claims file. Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran should then be accorded a new VA examination. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that the duty to assist includes "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"). As regards the appeal for service connection for a bilateral eye disorder, in its January 2012 remand the Board requested that the Veteran be accorded a VA examination, which was duly done in February 2012. Unfortunately, it appears the claims file was prematurely forwarded to the Board before this new evidence could be considered by the agency of original jurisdiction (AOJ). Remand for consideration of this evidence is warranted. 38 C.F.R. § 19.31. Finally, in a rating decision dated in March 2012 the RO granted service connection for right and left foot hallux valgus with a rating of 10 percent, each foot, effective May 6, 2011. The Veteran timely filed a notice of disagreement with regard to the assigned ratings. In addition, the March 2012 rating decision denied the claim for an increased rating for the Veteran's service-connected bilateral knee disabilities, and denied the claim for service connection for a heart condition and arthritis on the grounds of no new and material evidence. The Veteran timely filed a notice of disagreement in these matters as well. As a Statement of the Case (SOC) has not been issued, remand for provision of such to the Veteran is warranted. See 38 C.F.R. § 19.26(d). See also Manlincon v. West, 12 Vet. App. 238 (1999) (providing that where a notice of disagreement has been filed with regard to an issue, and a SOC has not been issued, the appropriate Board action is to remand the issue to the RO for issuance of a Statement of the Case). After the RO/AMC has issued the SOC, the claim should be returned to the Board only if the Veteran perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: 1. Furnish the Veteran a Statement of the Case on the following issues: * Entitlement to an initial rating higher than 10 percent for left foot hallux valgus * Entitlement to an initial rating higher than 10 percent for right foot hallux valgus * Entitlement to a rating higher than 10 percent for left knee chondromalacia with mild degenerative joint disease * Entitlement to a rating higher than 10 percent for right knee chondromalacia * Whether new and material evidence has been sent to reopen a claim of service connection for a heart disorder * Whether new and material evidence has been sent to reopen a claim of service connection for arthritis These issues should be returned to the Board only if the Veteran perfects an appeal as to the particular issues in a timely manner. 2. Send VCAA notice to the Veteran that apprises him of the information and evidence necessary to substantiate a claim for service connection for a low back disorder on a secondary basis. 3. Ask the Veteran to provide the names and addresses of any medical care providers who have recently treated him for his back and/or eye complaints. After attaining the necessary authorization from the Veteran, any relevant records which are not duplicates of records already contained in the claims file should be requested. The Veteran should be notified of the inability to obtain requested records. In addition, relevant VA treatment records dated after February 3, 2012, should be obtained from the New Mexico VA Health Care System; especially, the Las Cruces Community Based Outpatient Clinic. 4. After completion of the above, schedule the Veteran for a VA spine examination to determine the nature of the current low back disorder and to obtain an opinion as to whether such is related to service or a service-connected disability. The claims file and electronic VA treatment records must be reviewed by the examination in conjunction with the examination. All indicated tests, including x-rays and range of motion testing, should be done, and all findings reported in detail. The examiner is then requested to opine on the following: i) Whether it more likely (greater than 50% probability), less likely (less than 50% probability), or at least as likely as not (50/50 probability) that the current low back disability arose during service or is otherwise related to any incident of service, including the treatment in service in July 1984 for a diagnosis of probable lumbar strain. The examiner must explain the reasoning for the opinion provided. ii) If it is determined that a current low back disorder was not incurred during service, then please opine as to whether it is more likely, less likely, or at least as likely as not that the current low back disorder was caused by the Veteran's service-connected left or right knee disability. The examiner must explain the reasoning for the opinion provided. iii) If it is determined that a current low back disorder was not caused by a service-connected knee disability, then opine as to whether it is more likely, less likely, or at least as likely as not that the current low back disorder was permanently worsened beyond normal progression (aggravated) by the Veteran's service-connected knee disabilities and/or bilateral hallux valgus disabilities. If the examiner determines that the current low back disorder has been aggravated by a service-connected disability, the examiner should attempt to quantify the degree of worsening to the low back caused by the service-connected disabilities. If an opinion cannot be rendered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere conjecture, the examiner should clearly and specifically so state in the examination report, and explain why that is so. 5. After completion of all of the above, readjudicate the claims for service connection for a low back disorder and a bilateral eye disorder. If the benefits sought remain denied, furnish the Veteran and his representative a Supplemental Statement of the Case and afford the appropriate time period to respond. Then return the case to the Board for appellate review, unless otherwise indicated. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. A. BANFIELD 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).