Citation Nr: 1320058 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 10-01 658 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected left knee disabilities. REPRESENTATION Veteran represented by: Connecticut Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from June 1979 to August 1982. This matter comes before the Board of Veterans' Appeals (hereinafter "Board") on appeal from a July 2009 rating decision by the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in Hartford, Connecticut. In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed Virtual VA to ensure a complete assessment of the evidence. No additional documents pertinent to the present appeal were revealed. The Board notes that the Veteran initially filed his claim for service connection for a lumbar spine disability on a direct basis. However, in his notice of disagreement (hereinafter "NOD") filed in July 2009, he asserted that his lumbar spine disability is secondary to his service-connected left knee disabilities. A claimant's identification of the benefit sought does not require any technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) ("It is the pro se claimant who knows that symptoms he is experiencing and that are causing him disability...[and] it is the Secretary who know the provisions of title 38 and can evaluate whether there is a potential under the law to compensate an averred disability based on a sympathetic reading of the material in a pro se submission.") A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (to the effect that, when determining the scope of a claim, the Board must consider "the claimant description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim"); Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008) (to the effect that the Board is required to consider all issues raised either by the claimant or the evidence of record); 38 C.F.R. § 3.159(c) (2012). In light of Brokowski, Robinson, and Clemons, and in consideration of the Veteran's recent assertion that his lumbar spine disability is related to his service-connected left knee disabilities, the Board has recharacterized the Veteran's lumbar spine claim as indicated on the title page. Notably, the Veteran had executed and revoked a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative (hereinafter "VA Form 21-22) that had previously appointed the Disabled American Veterans as his representative. Most recently, in November 2011, he executed a VA Form 21-22 and appointed the Connecticut Department of Veterans Affairs as his representative. The issues of entitlement to a compensable evaluation for the service-connected residuals of left inguinal hernia repair, to include residual surgical scar(s), and entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (hereinafter "TDIU") have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (hereinafter "AOJ"). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (hereinafter "AMC"), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The record as it stands is inadequate for the purpose of rendering a fully informed decision as to the claim that has been certified for the Board's review at this time. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill the statutory duty to assist the Veteran in developing facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). As noted, the Veteran initially asserted that his lumbar spine disability was caused by injury sustained during his active duty service while stationed in Spain. However, in his NOD, received in July 2009, he contended that his lumbar spine disability was secondary to his service-connected left knee ligament instability. A disability can be service connected on a secondary basis if it is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(a) (2012). Secondary service connection may be established by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(b), effective October 10, 2006. See 71 Fed. Reg. 52,744-52,747 (September 7, 2006). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. A claim for secondary service connection requires competent medical evidence linking the asserted secondary disorder to the service-connected disability. Velez v. West, 11 Vet. App. 148, 158 (1998). See also Wallin v. West, 11 Vet. App. 509, 512 (1998) and McQueen v. West, 13 Vet. App. 237 (1999) (both indicating, like Velez, that competent medical nexus evidence is required to associate a disorder with a service-connected disability). In short, in order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). A statement from the Veteran, received in April 2009, indicates that he has applied for, and may be in receipt of Social Security Administration (hereinafter "SSA") disability benefits. No SSA records appear within the claims file and no attempt has been made to obtain these records. VA has a duty to obtain SSA records when they may be relevant. Voerth v. West, 13 Vet. App. 117, 121 (1999). The duty to assist has not been met by VA. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(2) (2012). In this case, these records may contain information regarding the nature and etiology of the Veteran's claimed disabilities. Thus, upon remand, the RO/AMC should make as many attempts as are necessary to obtain the Veteran's SSA records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010); Baker v. West, 11 Vet. App. 163 (1998). Also, in the July 2009 NOD, the Veteran indicated that he receives ongoing treatment at the University of Connecticut Health Center (hereinafter "UCHC"), at "Farmington," and at the VA Medical Center (hereinafter "VAMC"). While treatment records have been obtained from the UCHC, received in 2009, the Board notes that records from "Farmington" have not been obtained, nor have recent records from UCHC. Also, complete VA treatment records from the VAMC must be associated with the claims file. VA's duty to assist includes obtaining records of relevant VA medical treatment. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA). Moreover, the Board finds that VA examination and medical opinion must be obtained before this claim may be adjudicated. As noted, the Board observes that the Veteran has raised alternative theories of entitlement in support of the appeal. He contends that symptoms began during service and, in the alternative, that his symptoms are secondary to service-connected disability since service separation. Both theories of entitlement require further investigation. See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Robinson v. Peake, 21 Vet. App. 545, 552-553 (2008). The Board particularly finds that the evidence currently meets the low threshold for determining when a VA examination is necessary. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board has very carefully considered the fact that there is a favorable opinion of record. Mariano v. Principi, 17 Vet. App. 305 (2003). In this regard, the Board notes that although Mariano states that it "would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant's case," Mariano, 17 Vet. App. at 312, the United States Court of Veterans Appeals (hereinafter "Court") distinguished Mariano in Douglas v. Shinseki, 23 Vet. App. 19 (2009). In Douglas, the Court indicated the Board may seek further evidentiary development even if a veteran has presented favorable, uncontroverted medical evidence if the favorable evidence, along with the other evidence of record, is not sufficient to allow the Board to make a fully informed decision. See Douglas, 23 Vet. App. at 26 (2009). In this regard, the Veteran's service treatment records are without findings of complaint or treatment for a lumbar spine injury or illness. Moreover, apart from the Veteran's initial claim for service connection, received in January 2009, which reveals he reported that he first experienced a low back condition subsequent to an injury in Spain in 1980, he has failed to explain the nature of his illness or injury in any detail since that time. However, a February 2009 statement from "Dr. Khan" of "Central Connecticut Neurosurgery and Spine" indicates the Veteran has been diagnosed with L5 to S1 degenerative disc disease and right-sided foraminal stenosis. This statement also contains the opinion that the Veteran's military service was a substantial factor in causing the Veteran to develop degenerative disc disease and his current disability. Specifically, Dr. Khan noted that the Veteran's military service hastened the Veteran's degenerative disc disease. The Board finds the opinions of Dr. Khan, the only of record addressing the nature and etiology of the Veteran's lumbar spine disability, to be deficient. First, although Dr. Khan notes that the Veteran described a "history of multiple injuries during his military service," the lay evidence does not reveal any description of in-service injury, beyond that noted on the Veteran's application for benefits, and Dr. Khan failed to report which specific injuries the Veteran alleges to have had in service. Dr. Khan failed to provide more than a diagnosis of the Veteran's lumbar spine disability, and did not provide a context or background regarding the nature of the treatment the Veteran receives by him. Moreover, Dr. Khan did not have the benefit of review of the Veteran's service treatment records before proffering the opinion, which do not show any treatment for a lumbar spine disability. The probative value of medical opinion evidence, among other factors, is based on whether a clinician was "informed of the relevant facts" and medical history in rendering a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Second, the opinion as to the existence of relationships between the Veteran's lumbar spine disability and his military service are cursory and conclusory, without adequate explanation of the rationale behind the opinion that the Veteran's service was a substantial factor in leading him to have degenerative disc disease, and hastening his degenerative disc disease. Without such reasoning, the Board is unable to assign more than minimal probative weight to the examiner's and physicians' conclusions; thus, they are insufficient to decide the matter. See Nieves-Rodriguez, 22 Vet. App. at 304. Accordingly, Dr. Khan's statement is inadequate to decide the case. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Moreover, now that the Veteran has asserted a different theory of entitlement upon which to base the claim, namely that the service-connected left knee disabilities cause or aggravate the Veteran's lumbar spine disability, the Board finds that additional development must be conducted to address this new assertion. Because the record is otherwise insufficient to allow the Board to make a fully informed determination, remand for VA examination and medical opinion is necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c); Douglas, 23 Vet. App. at 26. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must attempt to obtain the any complete SSA disability file, including any pertinent claim for benefits, the SSA decision, any List of Exhibits associated with the decision, and copies of all of the medical records upon which any decision concerning the Veteran's entitlement to benefits was based. If any requested records are not available, that fact must clearly be documented in the claims file and proper notification under 38 C.F.R. § 3.159(e) should be provided to the Veteran. 2. The RO/AMC must request the Veteran to identify all records of VA and non-VA health care providers who have treated his lumbar spine, to include from UCHC and "Farmington." The RO/AMC should take appropriate steps to obtain copies of any outstanding treatment records, to include any treatment records from any VAMCs that have treated the Veteran. The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. The RO/AMC must arrange for a VA orthopedic examination with an appropriate clinician to determine the nature and etiology of any lumbar spine pathology diagnosed. All indicated studies and tests are to be performed. A copy of this remand and all relevant medical records should be made available to the examiner, to include any pertinent records in the Virtual VA Folder. The examiner is asked to confirm whether paper and/or electronic records were available for review. After reviewing the claims files, the examiner should provide an opinion as to the following questions: (a) Whether it is at least as likely as not (50 percent probability or more) that any diagnosed lumbar spine disability had its onset during service, became manifest within one-year of his discharge from service, or is otherwise causally related to any event or circumstance of his active service? (b) Without regard to the answer to question (a), whether it is at least as likely as not (50 percent probability or more) that any current lumbar spine disability, is either (1) proximately due to, the result of, or caused by a service-connected disability, to particularly include any left knee disability; or, in the alternative, (2) has been aggravated (made permanently worse beyond the natural progression of the disease) by any service-connected disability, to particularly include any left knee disability. It is imperative that the examiner provide a clear and separate response addressing these two distinct questions, involving causation and aggravation, for each claimed disability. In providing answers to the above questions, the examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. In making all determinations, the examiner is asked to carefully consider the Veteran's own assertions and any lay assertions of record, including the testimony of his spouse. The examiner is advised that the Veteran is competent to report his symptoms, and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for any opinion offered is requested. If the examiner is unable to render the requested opinion without resort to pure speculation, he or she must so state; however, a complete rationale for such a finding must be provided. 4. Thereafter, the RO/AMC must consider all of the evidence of record and readjudicate the claim for service connection. If the benefit sought is not granted, the RO/AMC must issue a supplemental statement of the case and allow the Veteran and his representative an opportunity to respond. 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 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). _________________________________________________ S. L. Kennedy 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).