Citation Nr: 1342936 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 08-03 962 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a right knee disorder, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from December 2000 to December 2004. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a December 2006 rating decision of the VA Regional Office in Winston-Salem, North Carolina that, in pertinent part, denied service connection for a low back disorder, a right knee disability and posttraumatic stress disorder. The appellant was afforded a videoconference hearing in June 2010 before the undersigned Veterans Law Judge sitting at Washington, DC. The transcript is of record. These matters were remanded for further development by a Board decision in September 2011. By rating action dated in February 2013, service connection was granted for PTSD. This is the full grant of this benefit sought on appeal and is no longer for appellate consideration. Following review of the record, 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. The Veteran's Virtual VA electronic claims file associated with the paper record has been reviewed in conjunction with the issues on appeal. The representative's Informal Hearing Presentation is located in this file. REMAND The Board finds that further development of the record is required prior to disposition of the issues on appeal. This case was remanded in September 2011 for, among other things, an orthopedic examination to determine whether the claimed low back disorder was related to service and whether a right knee disability was secondary to service-connected left knee disability. A thoracolumbar spine examination was performed in January 2013. The examiner indicated that the claims folder was reviewed. The Veteran reported a number of low back symptoms that included constant tingling and pain radiating into the buttocks. However, it appears that no current X-ray or other diagnostic imaging of the low back was performed, although diagnostic studies from early 2007 were reviewed. Following examination, back sprain was diagnosed. The examiner stated that this was less likely than not related to service. The rationale provided was that an X-ray of the lumbar spine was normal. However, as indicated above, it does not appear that any current X-rays of the lumbar spine were taken. Additionally, in arriving at the rationale, the VA examiner referred to military records showing that the Veteran was seen for low back pain [in 2001]. It does not appear, however, that he or she considered subsequent private clinical records dated in November and December 2004 (while the Veteran was still in service) that also reflected back treatment after reinjury, for which an impression of lumbosacral strain was rendered. It was noted at that time that the appellant was taken to Sentara Virginia Beach Hospital but that he was not sure whether X-rays of his spine or lower extremities were performed or not. It is not shown that the Sentara records were secured or requested. As to the right knee, the Board observes that when the Veteran was initially examined for compensation and pension purposes in January 2006, he stated that he developed pain in both knees four years before. He also testified on personal hearing in September 2011 that right knee symptomatology began in service or that it was secondary to the service-connected left knee. The Board notes that pursuant to the Board's remand, the examiner was only requested to provide an opinion as to whether right knee disability was proximately due to or the result of the service-connected left knee patellofemoral syndrome. The Board points out, however, that the Veteran is also service connected for left ankle sprain. This disability also needs to be considered in whether the appellant has a right knee disorder that is proximately due or the result of a service-connected condition. Review of the January 2013 examination report reveals that while service connection of the right knee was considered as directly related to service, the examiner did not address service connection on a secondary basis. Additionally, following examination, the examiner diagnosed bilateral knee strain but also indicated that the knee examination was unremarkable and normal. This is inconsistent. The Board would also point out that additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disability is also subject to service connection. See 38 C.F.R. § 3.310 92013), Allen v. Brown, 7 Vet.App. 439, 448 (1995). The Board observes that no assessment has been provided as to whether the right knee or low back has been made chronically worse or aggravated by service-connected left knee and/or left ankle disability pursuant to Allen. VA is required to consider all issues reasonably raised by a veteran's statements and the evidence. See EF v. Derwinski, 1 Vet.App. 324, 326 (1991). The Board thus finds that for reasons noted above, the January 2013 examination is inadequate for adjudication purposes, and is generally unsatisfactory overall. The Veteran must be scheduled for a new VA orthopedic examination. The fulfillment of VA's statutory duty to assist the appellant includes requesting a contemporaneous and thorough VA medical examination by an appropriate VA examiner and providing a medical opinion that takes into account the records of prior medical treatment so that the disability evaluation will be a fully informed one. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Additionally, the appellant wrote in February 2007 that he received treatment for his back at the Hampton VA Medical Center in Hampton, Virginia, and that arthritis of the low back had been diagnosed. The most recent records date through November 2007. The February statement of the case references outpatient treatment records from VAMC Durham from March 2006 to May 2010, but these records are not of record or in Virtual VA. As there is potential notice of additional VA records, they must be retrieved and associated with the other evidence on file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, VA outpatient records dating from December 2007 through the present must be requested from the Hampton VAMC, and records dating from VAMC Durham [NC] must be requested and associated with the claims folder. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and request that he furnish authorization with dates of treatment and an address to obtain records from Sentara Virginia Beach Hospital. These records should be requested and associated with the claims folder or Virtual VA. 2. Request VA outpatient records from December 2007 through the present from Hampton VAMC and from Durham VAMC and associate them with the claims folder. 3. Schedule the Veteran for a VA orthopedic examination by a different examiner, if possible, to determine whether he has low back and right knee disorders related to service, or ones that have been caused or aggravated (permanently made worse) by service-connected disability. The claims folder and access to Virtual VA must be made available to the examiner. The clinical findings should be reported in detail. Following examination and review of all of the evidence, the examiner must specifically opine a) whether it is at least as likely as not, i.e., is there a 50/50 chance the Veteran has current low back and right knee disorders that are directly related to or had their onset during active duty; or b) whether it is at least as likely as not, i.e., is there a 50/50 probability or better that any current back and right knee disability is proximately due to or the result of service-connected left knee and/or left ankle disorder. If not, c) the examiner should opine whether it is at least as likely as not that any diagnosed back and right knee disorders have been permanently aggravated to any degree by left knee/left ankle disabilities. The examination report should include well-reasoned rationale for all opinions and conclusions reached. 4. After taking any further development deemed appropriate, re-adjudicate the issues on appeal. If a benefit is not granted, provide a supplemental statement of the case to the Veteran and his representative before the case is returned 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 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. 2013). _________________________________________________ REBECCA FEINBERG 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).