Citation Nr: 1337615 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 04-06 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a bilateral knee disability, to include as secondary to a service-connected lumbar spine disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from December 1966 to September 1970, and had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the United States Naval Reserve from March 13, 1978 to April 18, 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which denied the Veteran's claim for service connection for a bilateral knee disability. In a July 2007 decision, the Board granted the Veteran's claim of entitlement to service connection for posttraumatic stress disorder and denied his claims for service connection for bilateral hearing loss and tinnitus. At that time, the Board remanded the Veteran's remaining claims, regarding whether new and material evidence was received to reopen a claim for service connection for a lumbar spine disability, and service connection for a bilateral knee disability, to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary development. In an August 2010 decision, the Board reopened the claim for service connection for a lumbar spine disability and remanded the claims for service connection for a lumbar spine disability and a bilateral knee disability for further development. In an August 2012 decision, the Board granted the Veteran's claim of entitlement to service connection for a lumbar spine disability and again remanded the claim for service connection for a bilateral knee disability for further development. The Board notes that, in addition to the paper claims file, there is a paperless, electronic record associated with the Veteran's claim (including Virtual VA and Veterans Benefits Management System (VBMS)). A review of the documents in such file reveals that certain documents, including VA medical records dated from February 2010 to March 2013, are potentially relevant to the issue on appeal. Thus, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issues of entitlement to service connection for coronary artery disease, hypertension, and restless leg syndrome have been raised by the record, but still have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are again referred to the AOJ for appropriate action. Additionally, the issues of whether new and material evidence has been submitted to reopen claims of service connection for bilateral hearing loss and tinnitus and entitlement to a total disability rating based on individual unemployability have been raised by the record in a July 2013 statement from the Veteran's representative found in the Veteran's Virtual VA file, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them either, and they are referred to the AOJ for appropriate action. 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 Although the Board sincerely regrets the delay, after a close review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claim. Pursuant to the Board's August 2010 remand, the Veteran underwent a VA examination in October 2010, in pertinent part, to determine whether his bilateral knee disability was due to or aggravated by his lumbar spine disability. The Board specifically mentioned that the VA examiner consider the issue of whether the Veteran's bilateral knee disability had been aggravated by his lumbar spine disability in its remand instructions. On VA examination in October 2010, the examiner opined that the Veteran's chondrocalcinosis of the knees was not caused by or a result of his back condition. The examiner reasoned that there was no diagnosis of an etiology that was manifested by back pain and possible exacerbated knee pain episodes. However, the examiner did not clearly address whether the Veteran's knee disability was aggravated by his lumbar spine disability. Moreover, the Veteran's medical records were not reviewed, and the examiner did not have the most current information regarding the Veteran's back diagnoses other than pain. Additionally, the examiner did not take into consideration or address the Veteran's complaint of injuring his knees in service. Therefore, in August 2012, after granting the claim for service connection for a lumbar spine disability, the Board again remanded the Veteran's claim for service connection for a bilateral knee disability to determine whether it was due to or aggravated by his service-connected lumbar spine disability. Pursuant to the Board's August 2012 remand, the Veteran again underwent a VA examination in December 2012, in pertinent part, to again determine whether his bilateral knee disability was due to or aggravated by his service-connected lumbar spine disability. The Board again specifically mentioned that the VA examiner consider the issue of whether the Veteran's bilateral knee disability had been aggravated by his lumbar spine disability in its remand instructions. On VA examination in December 2012, the examiner diagnosed the Veteran with bilateral knee arthralgia and mild degenerative changes in both knees. After careful review of the records, interview and examination of the Veteran, and search of the literature for a current understanding of the Veteran's condition, the examiner opined that any diagnosed bilateral knee disability, including chondrocalcinosis, was less likely as not caused by or a result of the Veteran's service-connected lumbar spine disability. The examiner cited a medical treatise regarding limping and back pain in support of his opinion. This treatise essentially found that if a person had a back problem that caused a limp resulting in the individual walking with a significant Trendelenburg lurch, this could theoretically cause increased stress in the normal leg, but the Trendelenburg gait pattern would have to have been present for an extended period of time to have an effect on the spine. Since the activity level of patients with chronic low back conditions was limited, it was unlikely that their lower extremities would be subjected to greater than normal force because the overall magnitude of joint force transmission by the lower extremities was directly related to walking speed. Furthermore, back problems of a lesser magnitude that caused low back pain without significant gait pattern alteration were unlikely to cause increased force transmission in the knee, and unlikely to generate the magnitude of force necessary to cause a meniscal tear. The examiner also cited a September 2011 VA medical report in which it was noted that the Veteran's movement and palpation of the back did not cause any knee pain. Although the December 2012 examiner provided a thorough and well-supported opinion regarding whether the Veteran's bilateral knee disability was due to his service-connected lumbar spine disability, he provided no opinion regarding whether the Veteran's bilateral knee disability was aggravated by his service-connected lumbar spine disability. The Court has held that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, the December 2012 examiner provided an opinion regarding whether the Veteran's bilateral knee disability was due to or caused by his service-connected lumbar spine disability, but failed to provide an opinion for whether the Veteran's service-connected lumbar spine disability aggravated his bilateral knee disability. Given the above, the claims file should be returned to the December 2012 examiner, if available, in order to obtain an opinion regarding whether the Veteran's bilateral knee disability has been aggravated (permanently worsened beyond normal progress of the disorder) by his service-connected lumbar spine disability. Additionally, Virtual VA contains VA medical records dated from February 2010 to March 2013 concerning the Veteran's bilateral knee disability. This evidence, however, was not considered by the Agency of Original Jurisdiction. Although a June 2013 supplemental statement of the case noted review of VA medical records dated from November 2012 to June 2013, it did not discuss the evidence dated from February 2010 to September 2012 from the VA medical centers in Syracuse and Binghamton. Moreover, subsequent to the June 2013 supplemental statement of the case, the Veteran's Leave and Earning Statements from his Naval Reserve service were associated with the claims file in August 2013, but were also not considered by the Agency of Original Jurisdiction. As no supplemental statement of the case has been issued with respect to the medical records dated from February 2010 to September 2012 or the Veteran's Leave and Earning Statements, this evidence must be discussed in a supplemental statement of the case. See 38 C.F.R. § 19.31 (2013). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the examiner who conducted the December 2012 VA examination, if available. The examiner should once again review the claims file and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current bilateral knee disability is aggravated (permanent worsening of the underlying disability beyond natural progress) by the service-connected lumbar spine disability. If aggravation by a service-connected disability is found, then the examiner should quantify the degree of such aggravation, if possible. The examiner should explain the medical basis for the conclusion reached. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled. If the previous examiner is no longer available, then the requested opinion with rationale should be rendered by another qualified examiner. 2. After the development requested above has been completed, the record should again be reviewed. If any benefits sought on appeal remain denied, the Veteran and his representative should be furnished with a supplemental statement of the case, including consideration of February 2010 to September 2012 VA medical records and the Veteran's Leave and Earning Statements from his Naval Reserve service, as well as any other medical records that are added to the claims file, and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ K. OSBORNE 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).