Citation Nr: 1319496 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 08-33 665 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for lumbar spine disorders, to include as secondary to the service-connected left knee degenerative arthritis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active service from May 1970 to December 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an August 2007 rating decision prepared by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The RO in Chicago, Illinois, however, issued the rating decision with the appropriate cover letter notifying the Veteran of that determination. Due to the location of the Veteran's residence, the jurisdiction of his appeal remains with the RO in Chicago, Illinois. The Veteran and his spouse appeared and testified at a Board video conference hearing held before the undersigned Veterans Law Judge in March 2012. A copy of the transcript of this hearing has been associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board previously remanded the Veteran's claim in April 2012 for additional development to include obtaining private physician treatment records and Social Security Administration records. On remand, the Social Security Administration records were obtained and associated with the claims file. In addition, the Veteran submitted in June 2012 some of his private physician's treatment records to VA himself in lieu of providing VA with a release for it to obtain them. Although he did not provide release forms or treatment records for all three doctors identified, he was advised in the May 2012 letter from the AMC to do so. The duty to assist is a two-way street. If the Veteran wishes help developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Consequently, the Board finds that the AMC substantially complied with the Board's prior remand. The Board finds, however, that the AMC continued to develop the Veteran's claim beyond the Board's remand by obtaining a VA examination and medical opinion in December 2012. The Board notes that, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In the present case, the Veteran was provided with VA examinations in May 2007, November 2011 and December 2012. Unfortunately, the Board finds that none of these examinations is adequate for adjudicating the Veteran's claim. As to the November 2011 and December 2012 VA examinations, the Board notes that they were conducted by the same examiner. Although acknowledging within the body of the November 2011 VA examination report that the Veteran has degenerative disc disease as well as osteoarthritis of the lumbar spine, the examiner's official diagnosis at both examinations was only osteoarthritis of the lumbar spine and his medical opinion was solely based on that diagnosis. However, the remaining medical evidence of record, including diagnostic testing, demonstrates that the Veteran has severe degenerative disc disease of the lumbar spine (to include herniated discs at L2-3 and L3-4 as well as severe degeneration at L5-S1 per magnetic resonance imaging (MRI) study noted in a June 2004 private treatment record) with severe foraminal stenosis at the L5-S1 level (see March 2008 VA treatment note that notes such finding on a July 2005 MRI) and diffuse facet joint disease of the lumbar spine (see August 2006 statement from Veteran's private treating orthopedist). In addition, the May 2007 VA examiner also diagnosed the Veteran to have degenerative disc disease and degenerative joint disease of the lumbar spine. Consequently, the November 2011 and December 2012 VA examiner's focus solely on osteoarthritis of the lumbar spine fails to take into account all the disorders involving the Veteran's lumbar spine as degenerative disc disease is a separate and distinct condition from osteoarthritis, as well s is foraminal stenosis. Furthermore, the VA examiner gave an opinion that, since the Veteran's cervical spine osteoarthritis is more advanced than his lumbar spine osteoarthritis, that this indicates that the pathophysiology for causation of arthritis in his lumbar spine is the same as that of the cervical spine and not his left knee condition despite the fact that the Veteran is diagnosed to have degenerative joint disease in that knee. (See November 2011 VA examination report.) In his December 2012 report, this same examiner further states the Veteran has degenerative disc and facet joint arthritis of his lumbosacral spine and cervical spine, there are no traumatic findings, and thus it looks like this is a part of degenerative arthritis of his entire body not just his spine. In making these statements, however, the examiner failed to explain his reasoning that the Veteran has a generalized arthritic condition of the body that is causing his arthritis of the lumbar spine rather than his left knee disability. Furthermore, he cites to no authority for the proposition that a person can have generalized arthritis of the body and that arthritis in one joint may be linked to arthritis in another joint. In addition, unlike the favorable opinion submitted by the Veteran's private treating physician in January 2012 that the Veteran's degenerative changes in the back are due to at least in part his left knee injury in service given that his gait has been affected for years, none of the VA examiners addressed whether such a gait change could either cause or aggravate the Veteran's disorders of the lumbar spine. The examiners only appeared to focus on the fact that there was no leg length discrepancy to cause a shift in weight bearing status. However, the evidence shows (including a May 2007 VA examination of the right knee) that the Veteran has an antalgic gait favoring the left knee. The examiners failed to explain how such favoring of the left knee causing an antalgic gait does not cause a shift in weight bearing that would affect the Veteran's low back and, therefore, either cause or aggravate his current low back disorders. In addition, the Veteran's initial contention was that his current low back disorders are secondary to his service-connected left knee disability. However, none of the VA examiners have provided an opinion answering the question of whether the Veteran's service-connected left knee disability may have aggravated the current low back disorders. Service connection on a secondary basis may be granted under one of two conditions. The first is when the disorder is proximately due to or the result of a disorder of service origin. In that case, all symptomatology resulting from the secondary disorder will be considered in rating the disability. The second is when a service-connected disability aggravates a nonservice-connected disability. In those cases, VA may only consider the degree of disability over and above the degree of disability prior to the aggravation. The United States Court of Appeals for Veterans Claims (Court) held that the phrases "caused by" and "related to" do not address the aggravation aspect of secondary service connection. Allen v. Brown, 7 Vet. App. 439, 449 (1995). Therefore, this medical opinion is essential to the Veteran's claim. Furthermore, there is no indication that the VA examiners took into account the favorable evidence of record, which includes multiple lay statements from the Veteran's family and the January 2012 private medical opinion. In fact the December 2012 examiner failed to respond to the question, "I have reviewed the conflicting medical evidence and am providing the following opinion:" despite the fact that the January 2012 favorable medical opinion was of record. The Board finds, however, that the examiners should not only consider the positive medical opinion but also the favorable lay statements from the Veteran's spouse (from May 2005) and his mother, brother and sister (from October 2008). In these statements, his family members discuss that the Veteran had no problem with his leg or back before service but after service he had pain in his leg and back and that his leg problems caused his gait to change. Furthermore, the Veteran himself has reported having low back pain shortly after he returned from Vietnam and had reported such to his private doctors (see e.g., October 2003 private treatment note indicating Veteran reported a 30 year history of back pain). Finally, the Veteran has also claimed that he actually injured his back in service in the same incident in which he injured his left knee. He has consistently reported that he was evacuated to Phan Rang and his left leg was placed in a cast and he remained there for about a week. He has also said he was placed on crutches for a while. The service treatment records show, however, that in December 1970 the Veteran was seen at the 5/27 battalion aid station for a questionable fracture of the left leg. The note indicates the Veteran was hit in the left lateral knee with a breech block from a 102mm Howitzer. X-ray did not show a fracture and the assessment was mild contusion. The Veteran was returned to his battery and was to be checked in the field as needed. At the time of his separation examination in December 1971, however, the Veteran reported the injury with treatment at Phan Rang Hospital in the Republic of Vietnam. According to the Veteran's service records, he was assigned to Battery B of the 5th Battalion of the 27th Artillery in December 1970. The Vietnam Order of Battle shows that the 5th Battalion, 27th Artillery was at Phan Rang with a forward command post at Phan Thiet at that time. Given the Veteran's statements, the Board finds that there may be missing service treatment records and an effort should be made to obtain any available inpatient clinical records relating to the Veteran's injury to his left knee from the hospital at Phan Rang in December 1970 as these records may be relevant to demonstrate the extent of the Veteran's in service injury. In addition to the fact that there may be missing service treatment records, the Board finds that the medical opinions provided as to direct service connection are inadequate as they are based solely on the lack of medical evidence in service of an injury to the low back without taking into account the Veteran's competent statements relating to the onset and continuity of his low back pain. Based upon the foregoing, the Board finds that additional development is necessary to seek any additional service treatment records available and to obtain a new VA examination with appropriate medical opinions. Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center (NPRC), or any other appropriate agency, and request it conduct a search for inpatient clinical records at the hospital in Phan Rang, Vietnam, relating to the Veteran's in-service injury to the left knee for the month of December 1970. Associate all requests and records received with the claims file. If records are unavailable from any sources, a negative reply is requested. 2. After all additional available evidence has been obtained, schedule the Veteran for a VA spine examination with a different examiner than the one who conducted the November 2011 and December 2012 examinations. 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 diagnostic tests and/or studies should be conducted and the examiner should provide a diagnosis of all disorders currently present in the Veteran's lumbar spine (shown by the current medical evidence of record to include severe degenerative disc disease of the lumbar spine, severe foraminal narrowing at the L5-S1 level, and diffuse facet joint disease). After reviewing the claims file and examining the Veteran, 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 each current low back disorder identified is related to any disease or injury incurred during service, specifically whether it is due to the Veteran's reported injury in December 1970 in the same incident in which he injured his left knee. In rendering an opinion, the examiner must consider the Veteran's statements as to an onset and continuity of symptoms relating to his low back. The examiner must also consider any other favorable evidence, whether lay or medical in nature. The examiner should be advised that an opinion based solely on the lack of evidence of an injury in service without consideration of other favorable evidence of record is not adequate for rating purposes. The examiner is further asked to provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that each current low back disorder identified is proximately due to, the result of or has been aggravated (i.e., permanently worsened beyond normal progression) by the Veteran's service-connected left knee disability (diagnosed as degenerative arthritis). [The examiner is informed that "aggravation" of refers to an identifiable, incremental, permanent worsening of the underlying condition, as contrasted with temporary or intermittent flare-ups of symptoms.] In rendering an opinion, the examiner must address the Veteran's statements as to an onset and continuity of symptoms relating to his left knee and low back. The examiner must also consider favorable lay evidence that indicates that the Veteran had symptoms relating to his left knee and low back since service. The examiner must also consider the favorable January 2012 private medical opinion. In rendering the opinion, the examiner should consider the evidence relating to the Veteran having an altered gait due to his service-connected left knee disability (which includes multiple lay statements from his family as well as medical evidence) and whether this would either cause or aggravate his present low back disorders. The examiner should be advised that an opinion is not adequate unless it addresses both causation and aggravation. If the Veteran is found to have a low back disorder that is aggravated by his service-connected left knee disability, the examiner should quantify the approximate degree of aggravation. The examiner should give a detailed explanation for the reasons for the opinions 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. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (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.) 3. After ensuring that all necessary development has been accomplished (to include the adequacy of the VA examination report and medical opinions provided), 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 Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112. _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, only a decision of the Board is appealable to the Court . 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).