Citation Nr: 1321632 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 09-08 884 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a right hip disability. 2. Entitlement to service connection for a lumbar spine disability. 3. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from January 1975 to January 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which, in pertinent part, denied service connection for disabilities of the bilateral hips, lumbar spine, and right knee, on the grounds that the evidence received was not new and material. In August 2012, the Board determined that new and material evidence sufficient to reopen the Veteran's claims of entitlement to service connection for disabilities of the bilateral hips, lumbar spine, and right knee, had been received; and denied the claims of entitlement to service connection for disabilities of the right hip, lumbar spine, and right knee, on the merits. The Board also remanded for additional development the issues of entitlement to service connection for disabilities of the heart, left ankle, and left hip, as well as a TDIU. These matters remain at the RO and continue to be developed and will not be further discussed. In a March 2013 Order, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand (JMR) of the claims of entitlement to service connection for disabilities of the right hip, lumbar spine, and right knee, and vacated the Board's August 2012 decision with respect to those issues. The matters were remanded to the Board for readjudication in accordance with the JMR. 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 A remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). As a preliminary matter, the Board notes that the most recent VA treatment records in the claims file, excluding the reports of May 2010 and September 2012 VA examinations and the copies of VA treatment records dated in August 2011 and February 2013 submitted by the Veteran; are dated in April 2010. There is no evidence that the Veteran has ceased VA treatment. Because VA is on notice that there are additional records that may be applicable to the Veteran's claims and because these records may be of use in deciding the claims, these records are relevant and should be obtained. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); Dunn v. West, 11 Vet. App. 462, 466-67 (1998). In its August 2012 decision, the Board denied the Veteran's claims of entitlement to service connection for disabilities of the right hip, lumbar spine, and right knee. The Board found that his service treatment records were negative for any complaints, treatment, or diagnoses related to disabilities of the right hip, lumbar spine, and right knee. VA X-ray examination in September 2009 revealed mild degenerative arthritis in the right knee, mild degenerative arthritic changes in the hips, and mild endplate spurring and mild degenerative disc changes throughout the spine with moderate arthrosis. The Veteran's treating VA physician submitted a letter dated October 2009 wherein he stated that the Veteran had a service-connected left knee condition, and subsequently developed multiple joint pain complaints over the years; and that it was reasonable to state that the abnormal gait associated with the Veteran's left knee condition was as likely as not to have contributed to the development of arthralgias in areas such as the right knee, right hip, and lumbar spine. The Veteran underwent VA examination in May 2010, at which time he reported the onset of his right knee condition as 2005 or 2006, his hip pain as 2007 and 2002 as the onset date of his spine condition. The examiner noted that the Veteran actually pointed to the bilateral buttocks when describing his condition. Examination revealed tenderness and guarding of movement associated with the bilateral hips, tenderness of the right knee, as well as a peripatellar click, and no abnormal spine curvatures. There was pain, tenderness, and guarding associated with the thoracic sacrospinalis. In May 2010, the examiner stated that it was less likely than not that the Veteran's right knee arthralgia or his mild degenerative changes of the right hip were caused by, or the result of, the Veteran's service-connected left knee condition. She cited to medical literature which stated that limping on one leg did not cause disability in the other, and reported that there was no clear evidence to suggest that an injury to one lower extremity would have any significant impact on the opposite uninjured limb, as stated in the October 2009 letter, unless the injury resulted in major muscle or nerve damage causing paralysis of the damaged leg. She further noted that it was also unlikely that any condition which caused a mild or moderate degree of limping would have any major detrimental effect on the opposite lower extremity. In her opinion as to the Veteran's right hip, she reported that obesity had a detrimental effect on both lower extremities and magnified all other risk factors. In her opinion as to the Veteran's lumbar spine, she reported that the Veteran had age-appropriate changes in the thoracolumbar spine; and that there was no support in the medical literature for a causal relationship between a knee or leg injury and degenerative changes in the axial spine, and a moderate degree of limping would not have any major detrimental effect on the lumbar spine. The Board found the May 2010 VA opinion more probative than the September 2009 VA opinion, as the May 2010 VA examiner provided a complete rationale and specifically addressed both the medical literature and the October 2009 VA opinion. Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The March 2013 JMR discussed that service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012), and that establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either: (a) proximately caused by; or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The parties to the JMR determined that the May 2010 VA opinion, found more probative than the September 2009 VA opinion by the Board in its August 2012 denial of the Veteran's claims, did not sufficiently address the issue of aggravation. Thus, on remand, a corrective addendum to the May 2010 VA examination report is required. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for 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). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file his VA treatment records maintained by the VA Medical Center (VAMC) in Lexington, Kentucky, dated from April 2010 to the present. If a negative response is received from VA, the claims file should be properly documented, and the Veteran must be so notified. All efforts to secure such records must be properly documented in the claims file. 2. Forward the Veteran's claims file to the examiner who conducted the VA examination in May 2010. If the May 2010 examiner, or a suitable substitute, is not available; or if the May 2010 examiner determines that a new physical examination is required, so schedule the Veteran. (a) The examiner is requested to provide diagnoses of any disabilities of the right hip, lumbar spine, and right knee, and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disabilities are proximately due to, the result of, his service-connected left knee disability, or any service-connected musculoskeletal disability, including possibly, the left ankle or left hip. (b) The examiner should then, as a clear and separate response, indicate whether it is at least as likely as not (50 percent or greater probability) that any disabilities of the right hip, lumbar spine, and right knee, have been aggravated, made permanently worse beyond the natural progression of the disease, by his service-connected left knee disability, or any service-connected musculoskeletal disability, including possibly, the left ankle or left hip. In this regard, the examiner should consider the Veteran's statements regarding his lay observable symptoms related to his right hip, lumbar spine, and right knee, both during and subsequent to service. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service treatment records to provide a negative opinion). Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravated' in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Note: To the extent possible, the requested opinions on aggravation should assess the level of severity of the right hip, lumbar spine, and right knee, disabilities both before and after the aggravating effects of any service-connected disability deemed as an aggravating factor, if any. The claims file, to include a copy of this Remand, should be made available to the examiner for review in conjunction with the opinion or examination, and the examiner should note such review. A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 3. Subsequent to the VA examination, review the examination report to ensure that it is in complete compliance with the directives of this remand. If it is deficient in any manner, corrective procedures must be implemented. 4. Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claims of entitlement to service connection for disabilities of the right hip, lumbar spine, and right knee, considering any additional evidence added to the record. In this regard, ensure that all prior remand directives issued by the Board in August 2012 are completely satisfied and all VA opinions obtained consider all adjudicated service connection claims prior to issuing an opinion as to the Veteran's right hip, lumbar spine, and right knee, as well as entitlement to a TDIU. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are 'inextricably intertwined' where they are so closely tied together that a final decision cannot be rendered unless both issues have been considered). If any action remains adverse to the Veteran, provide the Veteran and his representative with a Supplemental Statement of the Case and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of the examination that may be requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2012) failure to cooperate by not attending any requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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. PARAKKAL 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).