Citation Nr: 1334386 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 08-36 838 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Virginia A. Girard-Brady WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from July 1976 to June 1989. He has also claimed an additional year of active military service and four years of service with Reserve components following active military service. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In February 2011, the Veteran presented testimony in a travel board hearing before the undersigned and a copy of the transcript has been associated with the claims folder. In a December 2011 decision/remand, the Board denied the Veteran's claims of entitlement to service connection for right and knee disabilities and remanded the claim for service connection for a low back disability. The Veteran appealed the Board's decision denying service connection for the knee disabilities to the United States Court of Appeals for Veterans Claims (Court). In a May 2013 Memorandum Decision, the Court vacated the December 2011 Board decision's denying service connection for right and knee disabilities. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND As to the claim for bilateral knee disabilities, the Veteran was afforded an examination in May 2009. In the examination report, the VA examiner set forth a detailed history and onset of the Veteran's knee problems. The examiner noted diagnoses of bilateral "RPS," and opined that it was less likely as not that the disabilities were caused by or a result of treatment for the knees in service. In support of her opinion, the examiner noted that in 1998 the Veteran denied any knee pain. As an initial matter, the Board notes that in noting diagnoses of "RPS," the VA examiner did not further indicate the exact diagnosis. As noted by the Court in its May 2013 Memorandum Decision, the Board may not interpret the examiner's abbreviation. Furthermore, in rendering her opinion that the current knee disabilities were not related to service, the VA examiner focused on the Veteran's denial of pain on one occasion and failed to discuss the service treatment records showing treatment for the knees as well as the Veteran's contentions as to service incurrence, to include falling into a foxhole and being on his knees a lot working as a mechanic. She also failed to discuss the evidence showing that he had problems with his knees since service. On remand, the Veteran must be provided another examination to determine the nature and etiology of his current knee disabilities taking into account all the relevant evidence. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that "[o]nce VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the [veteran] why one will not or cannot be provided"); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). As to the claim for service connection for a low back disability, the Veteran was provided an examination in February 2012. In noting diagnoses of lumbar strain and degenerative joint disease of the lumbar spine, the examiner opined that the disabilities were less likely as not incurred in or aggravated by service. She noted that the low back strain started in service in 1989 and she did not find any records of chronic low back pain since separation from service. The examiner also cited to the most recent x-ray report showing minimal degenerative changes of the lumbar spine which she found was appropriate for the Veteran's age and not due to service as they would have manifested earlier than 19 years after service. The Board finds the VA examiner's opinion to be inadequate as she failed to take into account the Veteran's assertions that he has continued to have problems with his back since service and instead relied on the lack of records showing treatment for the back since service. In this regard, the Board notes that the Veteran is competent to state that he has had spine problems ever since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Accordingly, the Board finds that another examination is necessary to determine the etiology of the Veteran's current low back disability, specifically taking into account the Veteran's competent statements as to having had back pain since service. See Barr supra. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an examination to ascertain the nature and etiology of his current right and left knee disabilities. The claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examination report must indicate that the claims file was reviewed in conjunction with the examination. The examiner should obtain a complete history from the Veteran. The examiner should clearly state the diagnoses of any current right and left knee disability, and must not abbreviate or use short-hand in providing diagnoses. The examiner must also state whether it is at least as likely as not (50 percent probability or greater) that either right or knee disability is related to service, to include the multiple documented complaints related to the knees during service. In rendering an opinion, the examiner should also consider the Veteran's contention that his disabilities are related to service, to include falling into a foxhole and being on his knees a lot working as a mechanic during therein. The examiner should reconcile any opinion with the evidence of record and cite to the record as appropriate. Any opinion provided must include an explanation of the basis for the opinion. If the examiner is unable to offer the requested opinion, it is essential that the examiner explain why an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 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. 2. Schedule the Veteran for an examination to ascertain the nature and etiology of his current low back disability. The claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examination report must indicate that the claims file was reviewed in conjunction with the examination. The examiner should obtain a complete history from the Veteran. The examiner must indicate whether it is at least as likely as not (50 percent probability or greater) that the low back disability is related to service, to include the documented complaints related to the back during service. The examiner should also consider the Veteran's contention that he has had problems with his back ever since service. The examiner should reconcile any opinion with the evidence of record and cite to the record as appropriate. Any opinion provided must include an explanation of the basis for the opinion. If the examiner is unable to offer the requested opinion, it is essential that the examiner explain why an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 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. 3. Thereafter, readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran 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). _________________________________________________ J. K. BARONE Acting 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) (2013).