Citation Nr: 1332011 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 10-31 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability, to include as secondary to a left knee disability. 3. Entitlement to service connection for a lumbar spine disability, including arthritis and scoliosis, to include as secondary to a right and/or left knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran had active duty service from August 1961 to August 1964. This matter comes before the Board of Veterans' Appeals (BVA) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran submitted a timely notice of disagreement in May 2009; a statement of the case was issued in July 2010; and a VA Form 9 was received in July 2010. This matter was previously before the Board in April 2013, at which time it was remanded for further development. 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 Veteran seeks service connection for bilateral knee and lumbar spine disabilities on both direct and secondary bases. Specifically, he contends that he sustained various injuries to the knees during basic training (including knee strain and torn meniscus), and additional trauma to both the knees and back (arthritis and scoliosis) with repeated parachute jumps in jump school and thereafter. Alternatively, he asserts that he favors his "good" knee to compensate for pain associated with his "bad" knee and that that has resulted in disability to his "good" knee. Likewise, he states that his knee condition(s) have resulted in an altered gait, and therefore, have adversely impacted his lumbar spine conditions, namely arthritis and scoliosis. Service treatment records reflect multiple episodes of treatment for the left knee. Specifically, a September 1961 Statement of Medical Examination and Duty Status report shows that the Veteran was treated at Ireland Army Hospital (Fort Knox) in August 1961 for a left knee "sprain," which occurred during basic training (PT). Line of Duty Status was determined as "yes." The contemporaneous August 1961 service treatment note shows that the Veteran had injured his left knee three weeks prior; he currently presented with complaints of reinjuring his knee (pain, swelling, and locking). He was sent to the emergency room. The ER note reflects that the left knee "locked" while doing PT; x-rays were ordered and he was sent to the orthopedic clinic emergency room. In September 1961, the Veteran was admitted to the Ireland Army Hospital for pain and swelling of the left knee "which occurred during sport jumps." Physician examination revealed marked swelling of the left knee and tenderness; the left knee was also "locked" at about 10 degrees of flexion. Treatment consisted of traction and unlocking of the locked knee. The Veteran also received physical therapy and was subsequently discharged to duty with normal laboratory/examination findings and x-rays. A December 8, 1961 service treatment record shows that the Veteran twisted his left knee; the diagnosis was possible torn cartilage (left knee). The Veteran was prescribed an ACE bandage and crutches. A contemporaneous clinical record reflects that the Veteran reported daily to the PT clinic for a period of one week where he received five whirlpool treatments to the left knee. He was discharged from the clinic on December 19, 1961. A December 1961 left knee x-ray was negative for bone pathology. A June 1962 service treatment record shows that the Veteran presented with complains of his knee locking in the mornings; he stated that he previously injured his knee in basic training. He was advised to return to the orthopedic clinic if the knee continued to bother him. A November 1962 service treatment record shows complaints of numerous episodes of locking and difficulties with extension. The diagnostic impression was torn meniscus. No specific knee (right or left was identified). He was referred to Womack Army Hospital. An April 1964 service treatment record reflects a diagnosis of mild lumbosacral strain ("backache for 3 weeks"). On the June 1964 separation Report of Medical History, the Veteran checked "yes" as to having "trick" or locked knee. The Veteran has repeatedly reported that he underwent surgery on his right knee "by an orthopedic doctor 1 year after leaving service, where he replaced the upper and lower meniscus with plastic cartilage." See, e.g., January 2009 Statement from Veteran. He contends that both knees have continued to bother him since service. Notably, VA has made no efforts, to date, to obtain the identified post-service (presumably, private) surgical records pertaining to the right knee surgery in 1964-1965. These post-service medical records, and any other private treatment records identified by the Veteran, would be relevant to the claim on appeal and should be requested upon remand. The first post-service evidence of treatment for knee problems is not shown until approximately 2009, at which time the sole private orthopedic report of record delineated the following diagnoses: torn medial meniscus, left knee; osteoarthritis, left knee; left knee effusion; and left knee pain. This private medical report also indicated that the Veteran presented to the office for a "recheck of his left knee" (which suggests previous/ongoing knee treatment by this provider) and that he complained of previous right knee problems and has been "chronically limping on his left knee which has caused the problem on the left side." See March 2009 Orthopedic Associates of Port Huron treatment note. In this regard, any outstanding clinical records associated with the foregoing private orthopedic treatment should also be requested upon remand. The Veteran underwent a VA joints examination in August 2009, at which time he again reported that he had surgery on the right knee following his separation from service. He stated that, following the surgery, he continued with a course of physical therapy and exercise. Objective examination did reveal a surgical scar on the right knee. The diagnostic impressions were as follows: mild degenerative changes of the lumbar spine with a history of lumbar strain in the past; mild scoliosis; degenerative changes in the right knee with history of surgery; and normal left knee without any instability but minor limitation of motion on each side. The VA August 2009 VA examiner opined that the knee and back conditions "are not the same conditions he was shown to have been treated for while in the military." The examiner confusingly reasoned that the Veteran had "only record of left knee condition in the claims folder and there was only one-time entry of back complaint." This examination report/opinion was later deemed inadequate by the Board in April 2013 because, contrary to the August 2009 examiner's findings, the March 2009 private medical report showed multiple left knee diagnosis. In April 2013, the Board remanded the Veteran's claim in order to obtain a VA examination for the claimed bilateral knee and back conditions. Specifically, the examiner was asked to address whether the Veteran's left knee torn medial meniscus and/or osteoarthritis was due to service, to include the documented left knee injuries during service; whether the right knee degenerative changes were proximately due to, or aggravated by his left knee disability; and whether the degenerative changes of the lumbar spine were proximately due to, or aggravated by his left or right knee disability. The examiner was also asked to acknowledge and discuss the Veteran's reports of continuity of symptomatology and the in-service injuries of the left knee. The requested VA opinions/examinations were obtained in July 2013. The VA examiner opined that the claimed bilateral knee conditions were less likely than not due to service. He reasoned that there were "few left knee medical records in Veteran's service," and that there was no "chronic knee condition documented in separation examination of 6/4/1964." He also reasoned that there was "no chronic knee condition in civilian medical records immediately after Veteran left the active service." Again, it appears that there are outstanding post-service private treatment records pertaining to the knee dated as early as 1964-1965, and through 2009. In light of this, and further considering that the examiner failed to address the multiple (not "few") incidents of left knee treatment/injury in-service (to include possible torn meniscus, i.e., a currently diagnosed condition), as well as the Veteran's complaints of ongoing bilateral knee symptomatology since service, the Board finds that the July 2013 VA opinion is inadequate. In addition to the foregoing deficiencies, the VA examiner also failed to address whether any knee disability was proximately due to, or aggravated by a right or left knee disability, as directed by the Board in its April 2013 remand. For all of these reasons, the Board finds that a VA addendum opinion should be obtained upon remand. With respect to the claimed lumbar spine disability, the July 2013 VA examiner opined that it was less likely than not that the claimed condition was due to service. The examiner reasoned that neither the service treatment records, nor the separation examination revealed a chronic back condition. The examiner also stated that there was no civilian treatment immediately following service. In this case, the Veteran primarily contends that his lumbar spine disability is secondarily related to his right and/or left knee disability, to the extent that it causes an altered gait. However, the July 2013 VA examiner did not provide an opinion regarding secondary service connection (despite the Board's April 2013 directives to do so). Moreover, to the extent that the Veteran contends that he initially injured his back during service while in jump school/parachute landings ("parachute landings were difficult for me because I favored my injured knee and took most of the impact of landing with my good knee and leg, my spine had received a great deal of trauma which has caused me to have a curvature of the spine known as scoliosis..."), the examiner did not address these contentions, nor did he directly address the Veteran's diagnosed scoliosis condition. See January 2009 Statement from Veteran. In light of the foregoing deficiencies, a new VA examination for the lumbar spine is required upon remand. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to submit written authorization for VA to obtain any private treatment records pertaining to the lumbar spine and bilateral knees, dated from 1964 to the present, to specifically include: (1) orthopedic surgical/treatment records pertaining to knee surgery in 1964-1965, with subsequent physical therapy and treatment; and (2) all treatment records from Orthopedic Associates of Port Huron, Michigan. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain addendum opinions to the July 2013 VA knee and lumbar spine examinations. If deemed necessary by the examiner, afford, the Veteran a VA examination for his bilateral knees and lumbar spine. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. After review of the claims file, including any and all private treatment records obtained by virtue of this remand, the examiner should address the following: (i) whether it is at least as likely as not (50 percent possibility or greater) that any currently diagnosed left knee disability (to include torn medial meniscus and/or degenerative joint disease) is causally or etiologically related to service, including the documented in-service knee injuries (i.e., sprain and meniscal tear) or the Veteran's reports of knee pain and further impact injury while performing parachute jumps? (ii) whether it is at least as likely as not (50 percent possibility or greater) that any currently diagnosed right knee disability (to include degenerative joint disease), is causally or etiologically related to service, including the documented in-service knee injuries and or the Veteran's reports of knee pain and further impact injury while performing parachute jumps? (iii) whether it is at least as likely as not (50 percent possibility or greater) that any currently diagnosed left or right knee disability is proximately due to, or aggravated (an increased in severity beyond natural progression) by a knee condition identified as being related to service in section (i) or (ii) above? (iv) whether it is at least as likely as not (50 percent possibility or greater) that the Veteran's current low back disorder(s), to specifically include degenerative disc disease of the lumbar spine, but excluding scoliosis, is/are causally or etiologically related to service, to include impact-related injury to the lumbar spine from repeated parachute landings in-service? (v) with respect to lumbar scoliosis only, does it constitute a defect or a disease, as defined by VAOPGCPREC 82-90 (generally, a congenital abnormality that is subject to improvement or deterioration is considered a disease)? If the Veteran's lumbar scoliosis is considered a defect, then was there any superimposed disease or injury in connection with the congenital defect? If so, is it at least as likely as not that the identified superimposed disease or injury is related to the Veteran's period of active service? If the examiner finds that the Veteran's scoliosis is a disease, then is it at least as likely as not that it was aggravated by his period of active service? Aggravation indicates a permanent worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. (vi) whether it is at least as likely as not that degenerative disc disease of the lumbar spine and/or lumbar scoliosis of the lumbar spine are proximately due to or aggravated (an increased in severity beyond natural progression) by his left knee and/or right knee disabilities, to include as due to altered gait? In rendering these opinions, the examiner is to consider the Veteran's complaints of continuity of appropriate symptomatology and not rely solely on the lack of evidence of any pertinent treatment during service. The examiner(s) should provide a complete rationale for any opinions expressed. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ WAYNE M. BRAEUER 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).