Citation Nr: 1333779 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 10-41 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a low back disability, to include as secondary to a service-connected left knee disability. 2. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected left knee disability. 3. Entitlement to service connection for a right ankle disability, to include as secondary to a service-connected left knee disability. 4. Entitlement to service connection for a left ankle disability, to include as secondary to a service-connected left knee disability. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from September 1982 to December 1983. He received the parachutist badge and combat infantryman badge. These matters come to the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In March 2012, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. During the hearing, the Veteran submitted additional evidence with a waiver of initial RO consideration. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. Service records show that in November 1982 the Veteran met the standards for Airborne Training and Special Forces. A July 1983 service treatment record notes that the Veteran was a paratrooper with complaints that he hurt his right leg. He complained of point tenderness at the lower leg. X-rays were undertaken. The assessment was strain of the ankle. An August 1983 record notes that the Veteran complained of soreness in the right foot, and it is unclear from the record if it also indicates the left foot, and injury to left knee. The assessment was strain to the posterior cruciate ligament and dryness to the right foot. An August 1983 Special Forces examination was negative for any complaints, findings, symptoms, or diagnoses pertaining to the lower back, knees, or ankles. The November 1983 separation examination and contemporaneous self report of medical history were negative for any complaints, findings, symptoms, or diagnoses pertaining to the lower back, knees, or ankles. In an October 2009 private medical record, G. L. Stewart, M.D. noted that the Veteran had MRIs to both of his knees. The impression was small lateral meniscus tear of the left knee and mild degenerative disease of both knees. In March 2010, the Veteran underwent a VA examination that only addressed the etiology of his left knee disability. A March 2010 rating decision granted service connection for a left knee disability. The other claims for service connection were denied on the basis of no currently diagnosed low back or ankle disabilities and no nexus linking the Veteran's diagnosed right knee disability to his active service. A July 2010 VA medical record notes that the Veteran was assessed with osteoarthritis of the knees, ankles, and low back. It was noted that the Veteran's private primary care physician had prescribed narcotics. A March 2011 VA medical record shows that the Veteran was diagnosed with lumbar sacral radiculitis and lumbar intervertebral disc disease. In a February 2012 letter, the Veteran's VA physician, J. M. Bookout, M.D. opined that the Veteran's left knee internal derangement and lumbar spine degenerative disc disease were related to an injury, disease, or event occurring during the Veteran's service. However, no rationale was provided for that conclusion. During the March 2012 Board hearing and in various medical records, the Veteran indicated that he has had ongoing pain in his low back, right knee, and bilateral ankles since service. VA is required to consider the Veteran's assertions of a continuity of relevant symptomatology that has persisted since his active service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Moreover, the Board cannot summarily determine that lay assertions lack credibility merely because they are unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board finds that a new VA examination is necessary to determine the nature and etiology of the Veteran's low back, right knee, and bilateral ankle disabilities. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). The Board also notes that in a March 2012 letter from the Veteran's private physician, Dr. Stewart indicated a medical opinion that the Veteran's bilateral knee arthritis was possibly related to an injury, disease, or event occurring during the Veteran's service. While the private physician suggests a nexus between the Veteran's right knee arthritis (the Board notes that the Veteran is already service-connected for his left knee disability), it is lacking in specificity or rationale to support a decision on the merits. Thus, on remand, the private physician should be afforded an opportunity to provide a rationale for the opinion. Savage v. Shinseki, 24 Vet. App. 259 (2011) (clarification from a private medical examiner must be sought when an examination report is unclear or insufficient and the missing information is relevant, factual, and objective). Lastly, the Board notes that during the March 2012 hearing, the Veteran and his representative provided testimony suggesting that the Veteran's low back, right knee, and bilateral knee disabilities were caused by his service-connected left knee disability. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (2012). When aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected disability, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b) (2012). The claims on appeal have not been adjudicated on a secondary basis to the service-connected left knee disability. Accordingly, the case is REMANDED for the following actions: 1. Notify the Veteran is notified of what evidence is needed to support a claim for secondary service connection. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 4398 (1995). 2. Send the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and authorization, to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran submit authorization for VA to obtain all outstanding private medical records from Dr. Stewart. In addition, request that Dr. Stewart provide a rationale for the opinion provided in the March 2012 letter that takes into account the Veteran's report of his history, a review of the Veteran's medical records, and his current symptoms. 3. Obtain all outstanding VA medical records and associate them with the claims file or Virtual VA. 4. Then, schedule the Veteran for a VA examination to determine the etiology of any current low back, right knee and bilateral ankle disabilities. The examiner must review the claims folder and should note that review in the report. The rationale for all opinions should be provided. Specifically, the examiner should provide the following information: (a) The examiner should clearly set forth all diagnosed low back, right knee, and bilateral ankle disabilities found. (b) The examiner should state whether it is at least as likely as not (50 percent or greater probability) that any diagnosed low back, right knee, and bilateral ankle disabilities (to include the previously diagnosed osteoarthritis of the low back, right knee, and bilateral ankles) was incurred during the Veteran's service, to include as due to numerous parachute jumps and parachute landing falls during service. The examiner must consider the Veteran's statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examiner should also discuss the opinions from Dr. Bookout in February 2012 and Dr. Stewart in March 2012. (c) The examiner should state whether it is at least as likely as not (50 percent or greater probability) that any low back, right knee, and bilateral ankle disabilities are proximately due to or the result of the Veteran's service-connected left knee disability. (d) The examiner should state whether it is at least as likely as not (50 percent or greater probability) that any low back, right knee, and bilateral ankle disabilities are aggravated by the Veteran's service-connected left knee disability. The term aggravated refers to a permanent worsening of the underlying condition beyond the natural progress of the disorder, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. 5. Then, readjudicate the claims, to include consideration of secondary service connection pursuant to 38 C.F.R. § 3.310. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Harvey P. Roberts 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).