Citation Nr: 1337356 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 08-05 400 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for degenerative disc disease of the lumbar spine (hereinafter, "lumbar spine disorder"). 2. Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: Sean A. Ravin, Esq. WITNESSES AT HEARING ON APPEAL Appellant and his mother ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Appellant had certified active service in the National Guard from October 1975 to March 1976. The record further reflects that he had additional service with the National Guard, which would have included periods of inactive duty training and active duty for training (ACDUTRA). This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied the current appellate claims. The RO in Honolulu, Hawaii, currently has jurisdiction over the Appellant's VA claims folder. The Appellant provided testimony at a hearing before personnel at the RO in April 2008, and before the undersigned Veterans Law Judge in July 2009. Transcripts of both hearings have been associated with the Appellant's VA claims folder. In November 2009, the Board promulgated a decision that denied service connection for a lumbar spine disorder and a right knee disorder. The Appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). By an August 2011 memorandum decision, the Court vacated the Board's November 2009 decision and remanded the case for further development. Judgment was entered by the Court in September 2011, and Mandate in November 2011. In April 2012, the Board remanded this claim for further development in light of the Court's memorandum decision, to include a new VA medical examination to address the nature and etiology of the Appellant's current lumbar spine and right knee disorders. Such an examination was accomplished in July 2012, with an August 2012 addendum. All other development directed by the Board's April 2012 remand appears to have been substantially accomplished. Despite the foregoing, for the reasons detailed below, the Board finds that further development is still required in this case. Accordingly, the appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. As an additional matter, the Board notes that the Appellant also perfected an appeal on the issue of entitlement to a total rating based upon individual unemployability (TDIU). However, he withdrew his appeal as to that claim in April 2008. See 38 C.F.R. § 20.204 (2012). Nevertheless, in recent statements, the Appellant's attorney has advanced new contentions of entitlement to a TDIU. Although these contentions were in the context of service connection being established for the lumbar spine and right knee disorders, inasmuch as the Board does not currently have jurisdiction over this TDIU claim it is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. REMAND The Appellant essentially contends that he developed degenerative disc disease of the lumbar spine as a result of an injury sustained as a result of participating in "slide for life" while on ACDUTRA in August 1987. He maintains that he has had low back problems since that injury. Although he acknowledges sustaining a post-service back injury in September 1989 while driving a bus, he contends that this injury only aggravated an existing back disorder. Regarding the right knee disorder, he has indicated that it is directly related to injuries sustained in military service, and in the alternative that it is secondary to his lumbar spine disorder. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Further, 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). 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). Active service includes any period of ACDUTRA during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty training includes duty, other than full-time duty, prescribed for the Reserves. 38 U.S.C.A. § 101(23)(A). Reserves includes the National Guard. 38 U.S.C.A. § 101(26), (27). The Board acknowledges that the Appellant's service treatment records confirm he was injured in August 1987 during a period of ACDUTRA, while participating in "slide for life." Further, these records note complaints of lower back pain following this injury. However, these records, including X-ray studies, reflect the Appellant sustained an injury to the coccyx. Moreover, the Appellant's spine was subsequently evaluated as normal as part of a January 1988 periodic service examination. There is also evidence of a back injury as part of a September 1989 work-related bus accident. The Board further observes that nothing in the Appellant's service treatment records indicates he sustained any injury to the right knee during his National Guard service. His lower extremities were consistently evaluated as normal on service examinations, to include January 1988. The Board also observes that there are competent medical opinions of record which both support and refute the Appellant's contentions. Specifically, private medical opinions dated in April 2007 and June 2012 an April from S. J. M., M.D. (hereinafter, "Dr. M"), and a February 2008 statement from L. O'R., DPT, support the Appellant's contentions regarding the lumbar spine disorder; while a VA medical examinations in March 2009 and July 2012 are against these contentions. The July 2012 VA examination also contains an opinion against the right knee claim. In the August 2011 memorandum decision, the Court found merit to the Appellant's contentions that the Board erred in relying on the March 2009 VA examination as it contained an insufficient rationale for its conclusions; that the Board did not properly analyze the credibility of his testimony tending to support continuity of symptomatology for his back conditions after service and prior to a post-service injury; and that the Board erred in attributing no weight to the private medical opinions supporting his claim because it regarded them as based entirely on the Appellant's reported history, which the Board had found to lack credibility. In pertinent part, the Court found that the Board did not address the Appellant's contentions that his lumbar spine condition would not have shown up on the X-rays, noting that it was a CT scan and MRI that eventually revealed the herniated discs. The Court found that the Board neither considered nor had any medical basis to evaluate the Appellant's argument that X-ray reports were insufficient to reveal his back condition. In view of the foregoing, the Board remanded the case for a new VA medical examination, and directed, in part, that such an examination should reflect due consideration of the opinions promulgated by Dr. M and L. O'R; and should address whether the X-ray studies conducted in 1987 and 1989 would have been sufficient to document a lumbar spine disability at that time, or whether such could have only been revealed by other testing such as CT scan or MRI as contended by the Appellant. The Appellant's attorney contended, to include in an October 2013 statement, that the July 2012 VA medical examination is inadequate and not in accord with the Board's remand directives. For example, in regard to the question of whether lumbar spine X-rays could be sufficient to diagnose a lumbar spine disability at that time, or whether such could have only been revealed by other testing such as a CT scan or MRI, the VA examiner stated: There[] was no evidence on multiple physical exams in August 1987 to consider a lumbar spine problem. To schedule MRI's and/or catscans on an adjacent uninvolved area, such as the lumbar spine, begs the question. Using conjecture or speculation about what such tests would reveal is not within the scope of good medical practice. Such tests would cause the [Appellant] to receive dangerous levels of radiation. In this particular case, there is no indication to perform an MRI or catscan. Such tests should be used to confirm the diagnosis made from the history and physical exam. The usage of MRI's and catscans of uninvolved areas would not be helpful in treating this [Appellant]. The Appellant's attorney contended that the Appellant disagreed with the VA examiner's analysis for several reasons, to include the examiner's characterization of the coccyx and the lumbar spine as "uninvolved areas." Although they were distinct body parts, it was contended that the coccyx is in fact the lowest part of the lumbar spine and it was very likely than an injury to the coccyx would also affect one's lumbar spine. The attorney also took exception to the phrase "begs the question," contending that the VA examiner did not identify any particular question. Further, the attorney contended the VA examiner was not asked whether tests such as an MRI or CT scan should have been preformed, but rather whether performing such tests would have revealed the lumbar spine injury in 1987 or 1989 as they did years later when they were conducted by non-VA medical providers. Moreover, the attorney contended the VA examiner did not reconcile his medical opinion with that of the favorable medical evidence from Dr. M and L. O'R; the VA examiner failed to analyze these opinions, and merely mentions that he reviewed them in making his opinion. The Board also observes that the VA examiner opined that there was no compelling evidence that knee strains were associated or caused by low back pain. However, the examiner failed to address the issue of secondary aggravation in accord with Allen, supra, and as directed by the Board's April 2012 remand. In view of the foregoing, the Board must conclude that the July 2012 VA examination, to include the August 2012 addendum, is not adequate for resolution of this case. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, a remand is required in order to accord the Appellant a new examination which does adequately address his lumbar spine and right knee claims. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). Further, the Appellant's attorney contended in the October 2013 statement, in part, that as the recent VA examination was inadequate he should be scheduled for a new examination. Since the Board has determined that a new examination is necessary in the instant case, the Appellant is hereby informed that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 addresses the consequences of a veteran's failure to attend scheduled medical examinations. That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain the names and addresses of all medical care providers who have treated the Appellant for his current disabilities of the lumbar spine and right knee since July 2012. After securing any necessary release, the RO should obtain those records that are not on file. 2. The RO should notify the Appellant that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service back and/or right knee symptomatology. The Appellant should be provided an appropriate amount of time to submit this lay evidence. 3. After obtaining any additional records to the extent possible, the Appellant should be afforded an examination by an examiner who has not previously evaluated him, in order to address the nature and etiology of his current disabilities of the lumbar spine and right knee. The claims folder should be made available to the examiner for review before the examination; the examiner must indicate that the claims folder was reviewed. Following evaluation of the Appellant, the examiner must express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the current lumbar spine disorder was incurred in, aggravated by, or otherwise the result of the Appellant's military service, to include the injury he sustained in August 1987 while participating in "slide for life." The examiner's opinion should reflect due consideration of the opinions promulgated by Dr. M in April 2007 in June 2012, by L. O'R. in February 2008, and by the March 2009 and July 2012 VA examiners. Moreover, the examiner should address whether the X-ray studies conducted in 1987 and 1989 would have been sufficient to document a lumbar spine disability at that time, or whether such could have only been revealed by other testing such as CT scan or MRI as contended by the Appellant. The examiner's opinion should also reflect consideration of the Appellant's contention that the coccyx is the lowest part of the lumbar spine and it was very likely than an injury to the coccyx would also affect one's lumbar spine. The examiner should also address whether it is at least as likely as not that the Appellant's current right knee disorder was incurred in, aggravated by, or otherwise the result of the Appellant's military service. If the examiner determines that this disability is not directly related to military service, then the examiner should express an opinion as to whether it is at least as likely as not that the current right knee disorder was caused or aggravated by the current lumbar spine disorder. By aggravation, the Board means a permanent increase in the severity of the underlying disability that is beyond natural progression. A complete rational for any opinion expressed must be provide. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. See Jones v. Shinseki, 23 Vet. App. 382 (2010). As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that 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. 4. Thereafter, the RO should review the claims folder to ensure that the foregoing requested development has been completed. In particular, the RO should review the examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, the RO should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing any additional development deemed necessary, the RO should readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Appellant's satisfaction, the Appellant and his attorney should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the last SSOC in February 2013, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). _________________________________________________ JOAQUIN AGUAYO-PERELES 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).