Citation Nr: 1502538 Decision Date: 01/20/15 Archive Date: 01/27/15 DOCKET NO. 10-18 298A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a low back disability, to include as secondary to service-connected chondromalacia of the left knee, or in the alterative, as due to a right knee disability. 2. Entitlement to service connection for a right knee disability, to include as secondary to service-connected chondromalacia of the left knee. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from January 1954 to November 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran asserts that his low back disability is secondary to his service-connected left knee disability and that his right knee disability is secondary to his service-connected left knee disability. In November 2014 testimony, the Veteran and his representative also asserted entitlement to service connection for a low back disability as secondary to bilateral knee disability. The Board notes that the Veteran is service-connected for chondromalacia of the left knee. Thus the claims have been characterized as indicated on the title page. In November 2014, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. The hearing transcript is associated with the claims file. Additional evidence was received by VA subsequent to the most recent, September 2013, supplemental statement of the case. Specifically, this evidence included additional VA treatment records, a May 2014 knee and lower leg VA examination report specific to the left knee, and a May 2014 addendum opinion. Neither the Veteran, nor his representative, waived RO review of this additional evidence. See 38 C.F.R. § 20.1304(c) (2014). However, as these claims must be remanded for additional development, the RO will have an opportunity to consider the additional evidence in the first instance when the claims are re-adjudicated after the development is completed. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A remand is required with regard to the claims of service connection for a right knee and a back disability, to ensure compliance with VA's duty to assist the Veteran in substantiating his claims. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014). As noted above, the Veteran has advanced a theory of secondary service connection with respect to his right knee claim and his back claim. This theory was not clearly addressed in the August 2013 back examination report nor in the August 2013 knee and lower leg VA examination report during which nexus opinions were rendered. With respect the Veteran's right knee claim, the VA examiner found it is less likely than not the Veteran's right knee condition was related to his left knee chondromalacia. However, the rationale provided by the VA examiner appeared to provide some reasoning more appropriate for a direct incurrence claim. For example, the VA examiner cited a lack of treatment after retirement showing continuity or chronicity of the right knee condition. However, such is not probative with respect to the secondary service connection claim because the right knee condition may have not manifested immediately after separation from service. Furthermore, the Veteran stated, in November 2014 testimony, that he did not seek treatment for his right knee disability. The VA examiner also noted the January 2012 VA examination report did not indicate pain or limited range of motion with respect to the right knee, and that the Veteran held multiple jobs with no functional impairment related to a right knee condition. The VA examiner's rationale is inadequate as it is primarily a recitation of facts, without any reasoning or explanation of why they support the examiner's conclusion. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Finally, the VA examiner stated the Veteran's mild degenerative joint disease with osteophyte is a condition caused by multiple factors including heredity, trauma, and the normal aging process. However, this finding is inadequate as it does not provide an opinion based on the specific facts of the Veteran's case, which the VA examiner was tasked to provide. Thus, the Board finds another VA examiner is warranted with respect to the Veteran's right knee claim. As noted above, Veteran contends that service connection is warranted for disability of the low back on a secondary basis due to disability of his right knee, among other theories of entitlement. Thus, Veteran's claim for a low back disability is inextricably intertwined with the claim for service connection for disability of the right knee, which is being remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). However, the Board finds the August 2013 VA back examination report is also inadequate. See Barr, 21 Vet. App. at 311-12. Similar to the right knee opinion, the VA examiner provided a rationale based on a recitation of facts without any reasoning or an adequate explanation. Id. In part, the VA examiner noted two instances when the Veteran reported he sustained his low back injury, the denial of low back pain in certain service treatment records, and when a back complaint is first addressed in VA treatment records. However, such does not provide the necessary discussion of the underlying rationale of the opinion, where most of the probative value of the opinion is derived. See Stefl, 21 Vet. App. at 123-25 (2007); Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases." (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)). The VA examiner also noted low back pain or degenerative disc disease is caused by multiple factors, but that the examiner could find no medical research study showing a direct relationship between low back pain and knee pain. This statement lacks necessary identification and discussion of the multiple factors that may cause low back pain or degenerative disc disease in the context of the Veteran's case. Id. Thus, based on the foregoing, the Board finds a remand for another VA back examination is necessary, to include an opinion as to secondary service connection due to a right knee disability. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA knee examination to determine the nature and etiology of any right knee disability that may be present or was present during or proximate to the claim. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. As to each diagnosed right knee disability, the examiner is requested to provide the following: a. Whether it is at least as likely as not (50 percent probability or more) that the diagnosed right knee disability was present in service, was caused by service, or is otherwise related to service. b. Whether it is at least as likely as not (50 percent or greater degree of probability) that the diagnosed right knee disability was caused by or aggravated by the Veteran's service-connected chondromalacia of the left knee. The term at least as likely as not does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of conclusion as it is to find against it. Aggravation is defined as a permanent worsening beyond the natural progression of the disease. A complete rationale for all opinions expressed must be provided. 2. Thereafter, schedule the Veteran for a VA spine examination to determine the nature and etiology any low back disability that may be present or was present during or proximate to the claim. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. As to each diagnosed low back disability, the examiner is requested to provide the following: a. Whether it is at least as likely as not (50 percent probability or more) that the diagnosed low back disability was present in service, was caused by service, or is otherwise related to service. b. Whether it is at least as likely as not (50 percent or greater degree of probability) that the diagnosed low back was caused by or aggravated by the Veteran's service-connected chondromalacia of the left knee. c. Whether it is at least as likely as not (50 percent or greater degree of probability) that the diagnosed low back was caused by or aggravated by a right knee disability. The term at least as likely as not does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of conclusion as it is to find against it Aggravation is defined as a permanent worsening beyond the natural progression of the disease. A complete rationale for all opinions expressed must be provided. 3. The Veteran must be notified that it is his responsibility to report for the examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158; 3.655 (2014). 4. Finally, after undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2014). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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) (2014).