Citation Nr: 1514463 Decision Date: 04/03/15 Archive Date: 04/09/15 DOCKET NO. 13-02 092 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for a right knee disability, to include as secondary to service connected ankle disability. 2. Entitlement to service connection for a left knee disability, to include as secondary to service connected ankle disability. 3. Entitlement to service connection for a low back disability, to include as secondary to service connected ankle disability. 5. Entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing or for a special home adaptation grant. 6. Entitlement to a certificate of eligibility for assistance in acquiring an automobile and adaptive equipment or adaptive equipment only. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from December 1980 to December 1983. This appeal to the Board of Veterans' Appeals (Board) arose from May 2011, August 2011, and May 2012 RO rating decisions. In the May 2011 rating decision, the RO, inter alia, denied the Veteran's claims for service connection for right knee, left knee, and lower back disabilities. By way of the August 2011 rating decision, the RO denied a claim for entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing or for a special home adaptation grant. In the May 2012 rating decision, the RO denied a claim for entitlement to a certificate of eligibility for assistance in acquiring an automobile and adaptive equipment or adaptive equipment only. The Veteran, through his representative, filed a notice of disagreement (NOD) with respect to the denials of the claims for service connection for right knee, left knee, and lower back disabilities in June 2011 and filed an NOD with respect to the denial of the claim for entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing or for a special home adaptation grant through his representative in September 2011. An NOD with respect to the denial of eentitlement to a certificate of eligibility for assistance in acquiring an automobile and adaptive equipment or adaptive equipment only was filed on behalf of the Veteran in May 2012. Statements of the case (SOCs) addressing each claim for which an NOD had been filed as set forth above were completed in December 2012, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) with respect to all of these claims in January 2013. In his substantive appeal, the Veteran requested a hearing at the RO before a Veterans Law Judge, and pursuant to this request, in June 2013,the Veteran and his wife presented testimony during a hearing before the undersigned Veterans Law Judge at the RO. Additional evidence, accompanied by a waiver of inial review of such by the RO, was added to the record at this hearing, and the undersigned also held the record open for 30 days for the submission of additional evidence following this hearing. Additional evidence and argument was received in July 2013 and thereafter. As a final preliminary matter, the Board notes that, in addition to the paper claims file, the Veteran also has electronic Virtual VA and Veteran Benefits Management System (VBMS) paperless claims files. The Virtual VA file contains the transcript from the June 2013 hearing, and this transcript and additional pertinent information contained in the electronic files has been reviewed and considered. For reasons expresses below, the claims on appeal are being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required REMAND The Board's review of the claims file reveals that further AOJ action in this appeal is warranted. The Veteran's essential assertion is that service connection is warranted for the claimed knee and back disabilities because he developed such disabilities during service as a result of the same disease process-ankylosing spondylitis (AS)-which resulted in his service connected right and left ankle disabilities. The Veteran asserted that the "start of the disease AS happened when I was born, . . .which makes it a pre-condition to military service missed by the doctors evaluating me for service fitness[,] and when [I] first reported problems with my feet during active duty." See Argument with accompanying evidence received from the Veteran by telefax in August 2014). As the Veteran has a medical background-his in-service Military Occupational Specialty was that of a medical specialist and he testified as to training and employment as a nurse-his assertions may represent competent medical evidence in connection with these claims. See Black v. Brown, 10 Vet. App. 279, 284 (1997) (a nurse's statement may constitute competent medical evidence where the nurse has specialized knowledge regarding the area of medicine or participated in treatment). Here, it appears that the Veteran's assertions have been deemed sufficient to trigger VA's duty to assist in the development of the service connection claims by arranging for the Veteran to undergo examination to obtain medical opinion evidence in connection with these claims. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Notably, VA's General Counsel has indicated that there is a distinction between a congenital or developmental "disease" and a congenital "defect" for service connection purposes. Congenital diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. 38 C.F.R. § 3.306. However, congenital or developmental defects are not service connectable in their own right, although service connection may be granted for disability resulting from disease or injury superimposed upon a defect during service. VAOPGCPREC 82-90 (1990). Given the silent September 1980 service entrance examination report for AS or knee or low back disabilities, the Veteran is presumed sound as to any such disabilities. Thus, if it were the case that the Veteran presented to service with a congenital "disease" of AS, to rebut the presumption of soundness, VA must show by clear and unmistakable evidence that (1) AS existed prior to service and (2) that such pre-existing disability was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 Fed. Cir. 2004. The AOJ has not obtained a medical opinion sufficient to determine whether the rebuttal standard required for claims based on aggravation of disabilities not shown at entrance is met, to include by the VA physician who examined the Veteran in December 2012 to provide an opinion as to the etiology of current knee or low back disability(ies). Also, no medical opinion has been sought or provided to address whether, instead of a congenital "disease" associated with AS, he entered service with a congenital "defect" for which there was superimposed disease or injury during service resulting in current disability knee or low back disability. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). See also 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"). Accordingly, the Board finds that further medical opinion, consistent with the above, is needed to resolve the service connection claims on appeal. 38 U.S.C.A. § 5103A 38 C.F.R. § 3.159; McLendon and Barr, supra. If the December 2012 examiner is not available, the AOJ should obtain an opinion, based on review of the claims file (to the extent possible), from another, appropriate medical professional. The AOJ should only arrange for the Veteran to undergo further examination if deemed necessary in the judgment of a competent medical professional. The Board points out that, in addition to the theory of entitlement addressed above, the Veteran has also claimed that service connection is warranted on a secondary basis. In the June 2011 NOD, he specifically asserted that that service connection for knee and back disabilities was warranted due to his bilateral ankle disorders "contribut[ing] to or aggravat[ing]" such disabilities. Notably, however, while the December 2012 VA examiner found that back and knee disabilities were not proximately due to or the result of the service connected ankle disabilities, he did not explicitly address whether knee or back disability was caused or is aggravated by service connected ankle disability. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Therefore, the clinician must provide medical opinion in this regard. The Veteran is hereby notified that failure to report to any scheduled examination, without good cause, may result in the denial of the claims. See 38 C.F.R. § 3.655(a),(b) (2014). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. As the claim of entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing or for a special home adaptation grant and the claim for a certificate of eligibility for assistance in acquiring an automobile and adaptive equipment or adaptive equipment only are derivative of the claims for service connection on appeal, adjudication of these claims must be deferred at this time. Harris v Derwinski, 1 Vet. App. 80 (1991). Prior to obtaining further opinion/examination, to ensure that the record is complete, and that all due process requirements are met, the AOJ should obtain and associate with the claims file any outstanding, pertinent records, to include any outstanding records of VA evaluation and/or treatment. Also, during the Board At the hearing before the undersigned, the Veteran testified that he is in receipt of Social Security Disability benefits due to disability associated with the conditions for which service connection is claimed. VA has a duty to obtain Social Security Administration (SSA) records when it has actual notice that the Veteran is receiving SSA benefits. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Collier v. Derwinski, 1 Vet. App. 412 (1991). Hence, when the VA is put on notice of the potential existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). Thus, the AOJ will be directed to obtain from the SSA and associate with the claims file copies of all records pertaining to any award of SSA disability benefits to the Veteran, following the current procedures prescribed in 38 C.F.R. § 3.159(c) (2014) with respect to requesting records from Federal facilities. Further, the AOJ should also afford the Veteran the opportunity to provide information and/or evidence pertinent to the claims that have been remanded, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2014); but see also 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). The AOJ should specifically request that the Veteran provide, or provide appropriate authorization for it to obtain, any outstanding private medical records. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2014). The actions identified herein are consistent with the duties imposed by the VCAA. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal. Accordingly, these claims are hereby REMANDED for the following action: 1. Undertake appropriate action to obtain all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Request from SSA copies of all records pertaining to any award of SSA disability benefits to the Veteran. In requesting these records, follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file 3. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to obtain any additional evidence pertinent to the matters that have been remanded. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent, private(non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all available records and/or responses from each contacted entity are associated with the claims file, arrange to obtain an addendum opinion from the VA clinician who conducted the December 2012 VA examination. If the December 2012 examiner is not available, document that fact in the claims file, and obtain an opinion, based on review of the claims file (to the extent possible), from another, appropriate medical professional. Only arrange for the Veteran to undergo further examination if deemed necessary in the judgment of a competent medical professional. The contents of the entire claims file (paper and electronic), to include a complete copy of this REMAND, must be made available to the clinician, and the report should reflect consideration of the Veteran's documented medical history and assertions. The clinician should provide opinions, based on sound medical principles, addressing the following: (a) Whether a "disease" of AS clearly and unmistakably existed prior to service entrance, and, if so (2) whether any knee or back disability related to such was clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression) during or as a result of service. (b) Whether it is at least as likely as not that a "congenital defect" of AS resulted in current knee or low back disability(ies) due to disease or injury superimposed upon such defect during service. (c) Whether any knee or low back disability (1) was caused or, if not (2) is aggravated (worsened beyond natural progression) by service connected ankle disability, to include as a result of an altered gait pattern. The examiner must respond to both questions, as appropriate. In rendering the requested opinions, the clinician must consider and discuss all pertinent medical evidence and assertions submitted by the Veteran. Complete, clearly-stated rationale for the conclusions reached must be provided. 6. To help avoid another remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal in light of all pertinent evidence and legal authority. 8. If any claim remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for any negative determination, and afford them the appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested in connection with the claims that have been remanded should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims 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 2014). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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 the appeal. 38 C.F.R. § 20.1100(b) (2014).