Citation Nr: 1324162 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 09-37 340A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a bilateral knee disability, to include Osgood-Schlatter's disease. 2. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Barbara B. Harris, Attorney ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from October 1970 to June 1971. This case is before the Board of Veterans' Appeals (Board) on appeal from February 2009 and January 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In the February 2009 rating decision, the RO determined that no new and material evidence had been received to reopen a previously denied claim of service connection for Osgood Schlatter's disease. In the January 2010 rating decision, the RO denied a claim of entitlement to service connection for a back disability. The Veteran disagreed with both determinations and this appeal ensued. VA regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. In the instant case, the Veteran's original claim of service connection for Osgood-Schlatter's disease, which was denied by the RO in July 1971, must be reconsidered without having to reopen the claim because evidence added to the claims file in conjunction with this most recent claim of service connection for Osgood-Schlatter's disease includes a service treatment record that is pertinent to the claim on appeal, and which was not associated with the claims file at the time of the original claim. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In an unappealed July 1971 rating decision the RO denied entitlement to service connection for Osgood-Schlatter's disease based on a finding that his bilateral knee disability was due to natural causes and existed prior to service. In a November 1977 letter, the RO denied entitlement to service connection for Osgood-Schlatter's disease on the basis that the knee condition was the result of natural causes and not compensable under the law and that the pre-existing knee disability was not aggravated beyond its normal progress during active service. In unappealed rating decisions dated May 1978 and February 1988, the RO denied claims of service connection Osgood-Schlatter's disease because no new and material evidence had been received to reopen the claim. Since the time of the February 1988 denial, a substantial amount of pertinent new and material evidence has been added to the claims file, including a service treatment record (STR) dated in June 1971. The particular STR that was subsequently added to the record after the previous denial is a June 1971 Report of Medical Examination noting, inter alia, that the Veteran had symptomatic Osgood-Schlatter's disease. As noted above, the STR is pertinent to the Veteran's claim, and because it existed at the time of the original denial of service connection, but was not associated with the claims file at that time, the issue on appeal must be a reconsideration of the original claim without the need to reopen any prior claim. The other evidence added to the record since February 1988 shows that the Veteran may have additional disabilities of the knees that may be superimposed on the Osgood-Schlatter's disease; or, that may be coincident with the Osgood-Schlatter's disease. Additional STRs, as well as personnel records, added to the claims file note that the Veteran was discharged from the Army National Guard in September 1976 due to physical disability. In addition, an April 1978 examination for enlistment to the Army Reserves notes pre-existing Osgood-Schlatter's disease. An October 1993 private x-ray report from Brigham and Women's Hospital indicates left knee deformity of the tibial tubercle which was overgrown and proximally positioned. There was a separate ossicle in the region and diffuse soft tissue swelling. Ossicles at the base of the patella were noted as well. There was no evidence of patellar subluxation. There was no joint effusion and the cartilage spaces were normal. On the right, the single frontal view showed calcification in the region of the medial femur suggesting previous MCL injury. There were minimal hypertrophic changes. The impression was stigmata of Osgood-Schlatter's disease on the left with apparent continued soft tissue swelling. A February 2003 Brigham x-ray report of the knees revealed bilateral medial compartmental osteoarthritis; a prior MCL injury evidenced by calcification, compatible with Pellegrini-Stieda disease; appearance of patellar tendinous insertions compatible with a history of Osgood-Schlatter's disease; and, appearance to left patella compatible with Sinding-Larson-Johansen syndrome. A July 2004 VA x-ray report notes calcification at the origin of the medical collateral ligament (MCL) suggesting previous traumatic avulsion, a finding termed Pellegrini-Stieda. In addition, an old avulsion fracture off the tibial tubercle with a 12 x 8 mm calcification in the distal aspect of the patellar tendon somewhat similar finding was noted on the left with a 10x7 mm calcification in the distal aspect of the inferior patellar tendon but there was more marked deformity of the left tibial tubercle. There were some degenerative changes along the posterior aspect of the left patella but there was no evidence of knee joint effusion. In a January 2012 private opinion, a nurse practitioner who reviewed the Veteran's claims file opined that Osgood-Schlatter's disease was a coincidental finding when the Veteran complained of bilateral knee pain, and it was more likely that repetitive use trauma related to kneeling, bending and stooping, stressing the knees as a refrigeration-air conditioning specialist was the source of his chronic bilateral knee pain. The nurse practitioner pointed out that the Veteran's chronic knee pain coupled with the [2003] x-ray findings from Brigham indicated a traumatic origin to his Pellegrini-Stieda syndrome, occurring some time ago. The nurse practitioner also noted that the Veteran's June 1971 physical noted swollen joints, which was not typical of Osgood-Schlatter's disease, according to the medical literature attached to the opinion. Moreover, she pointed out that the Veteran was 20 years old at the time, which was past the age of growth in most cases, and therefore past the point where symptoms of Osgood Schlatter's disease are typical. A November 2012 VA opinion, however, did not address the nurse practitioner's theory that the Veteran's knee pain was traumatic in origin and coincident with the Osgood-Schlatter's disease. Instead, the VA examiner indicated that the Veteran had a diagnosis of Osgood-Schlatter's disease that pre-existed service and was not aggravated by service. Further, the examiner indicated that there were no findings of arthritis, per x-ray findings. This is in complete contrast to the objective x-ray findings as noted above. Finally, the examiner did not address the nurse practitioner's findings of additional disabilities noted in the record, such as a possible MCL injury, an avulsion fracture, Pellegrini-Stieda disease, and Sinding-Larson-Johansen syndrome; and, the VA examiner ignored the medical treatise evidence she used to support her appeal. For these reasons, the November 2012 VA examination is not adequate to decide this appeal. Although the examiner was only asked to comment on whether the Veteran's pre-existing Osgood-Schlatter's disease was aggravated in service, VA is obligated to consider all reasonable alternate theories of entitlement presented. In this case the Veteran has presented an alternate theory of entitlement, that the Veteran has a knee disability that is superimposed on the congenital disease, or, in the alternative, a bilateral knee disability that is coincident with the pre-existing Osgood-Schlatter's disease and which was incurred in service. A VA examiner must address these contentions. In light of the foregoing, the matter must be remanded to the RO to schedule the Veteran for another VA examination to determine the likely etiology of any current bilateral knee disabilities. With regard to the Veteran's claim of service connection for a back disability, the Veteran's June 1971 discharge examination notes the Veteran's reports of back pain due to heavy lifting; however, only Osgood-Schlatter's disease and color blindness were noted in the section entitled "Summary of Defects and Diagnoses." A deformity of the Veteran's right little finger secondary to an old injury was also noted. A January 2009 VA pain clinic evaluation notes treatment for back and knee pain. The Veteran reported that he injured his back in 1976 while working at the VA. The Veteran reiterated that he had low back pain that dated back to 1976 when he was working as a nursing assistant. He reported injuring his back by lifting and turning patients and moving stretchers. The nurse practitioner, in her January 2012 private opinion, suggested that it was as likely as not that the Veteran's military occupation caused his musculoskeletal injuries and the chronicity further aggravated his back condition because a study concluded that a study shows that mechanical low back pain was the most common diagnosis (19%) in deployed individuals whereas overuse was the most prevalent mode of injury. A VA examination of the spine notes a current diagnosis of arthritis and degenerative disc disease, but the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner addressed the findings noted in the private opinion, but even considering the notation in 1971 of back pain, the examiner opined that the current diagnoses were less likely than not related to service. Although the issue of direct service connection has been addressed, the Veteran has also raised the theory of secondary service connection with regard to his back disability. In essence, the Veteran asserts that his back disability is secondary to, and/or aggravated by, his bilateral knee disability. Because this issue cannot be addressed or resolved until it is first determined whether service-connection is warranted for a bilateral knee disability, to include Osgood-Schlatter's disease, the issue of entitlement to service connection for a back disability must be deferred pending the outcome of the appeal with regard to entitlement to service-connected for a bilateral knee disability, to include Osgood-Schlatter's disease. Because the case is being returned on remand, all pertinent VA treatment records should be added to the record, either via the claims file, or the official electronic claims file. Additionally, the Veteran should be asked to submit (or properly authorize VA to obtain) all pertinent private treatment records not already of record. Finally, the Veteran should be provided with appropriate notice pursuant to 38 C.F.R. § 3.159 for direct and secondary service connection. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a duty to assist letter in response to his reopened claim of service connection for a bilateral knee disability, to include Osgood-Schlatter's disease, and his claim for service connection for a back disability, that is compliant with 38 C.F.R. § 3.159 (covering direct and secondary service connection). 2. Obtain and associate with the claims folder any pertinent VA treatment records relating to the Veteran's claim of service connection for a bilateral knee disability to include Osgood-Schlatter's disease, including, but not limited to records dating from April 2009; and, with appropriate authorization from the Veteran, obtain any pertinent private treatment records identified by the Veteran that have not already been associated with the claims file. 3. After completion of #1 and #2 above, schedule the Veteran for a VA orthopaedic examination to determine the current nature and likely etiology of any knee disability. Such examination must be scheduled with a physician who is capable of determining whether any disability exists in addition to the pre-existing Osgood-Schlatter's disease and/or whether there is any current disability that is co-existent with or superimposed on the Osgood-Schlatter's disease. All medical records (to include any pertinent medical records contained in Virtual VA) must be reviewed by the examiner in conjunction with the examination. All indicated tests should be completed. In particular, this should include an MRI scan if necessary. The examiner should provide the Veteran with an opportunity to explain the history of his injuries, symptoms, and in particular the onset of symptoms. The examiner is asked to express an opinion as to whether the Veteran has any currently diagnosed knee disabilities (in addition to the Osgood Schlatter's disease), including, but not limited to arthritis, MCL injury, avulsion fracture, Pellegrini-Stieda disease; and, appearance to left patella compatible with Sinding-Larson-Johansen syndrome, that are at least as likely as not (i.e., 50 percent or greater possibility) related to the Veteran's active service, to include coincidental with the Osgood-Schlatter's disease with service onset and/or superimposed on the Osgood Schlatter's disease as a result of overuse or injury in service. In that regard, the examiner's attention is directed to the January 2012 private opinion and the treatise evidence provided to support that opinion. The examiner should also comment on whether the objective findings on examination are consistent with the Veteran's reported history. The examiner must provide a complete explanation for any stated opinion. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Ensure that the above directives have been properly completed. If the examination report(s) are insufficient, it should be returned to the examiner for corrective action. Thereafter, take any other development action deemed warranted and then readjudicate the Veteran's claims. If the action taken is adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate opportunity to respond before the case is returned 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). 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). _________________________________________________ Bethany L. Buck 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).