Citation Nr: 1553805 Decision Date: 12/28/15 Archive Date: 01/07/16 DOCKET NO. 12-17 330 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a low back condition, to include as secondary to service-connected pes planus. 2. Entitlement to service connection for cervical disc disease, to include as secondary to service-connected pes planus. 3. Entitlement to service connection for a bilateral knee condition, to include as secondary to service-connected pes planus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1970 to April 1972. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In October 2015, the Veteran and his spouse testified at a Decision Review Officer hearing. A transcript of the proceeding is in the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for low back, cervical spine and bilateral knee conditions. He has asserted the conditions are directly related to active duty service. Alternately, he has also claimed that the conditions are secondary to his service-connected pes planus. In November 2010, the Veteran underwent VA joint and spine examinations. He was diagnosed with patellofemoral syndrome of the knees, lumbar strain with mild lumbar disc disease, and multilevel cervical disc disease. The VA examiner did not provide any opinions regarding the etiology of any of the Veteran's diagnosed conditions. In a December 2010 addendum, the examiner simply stated that the Veteran's current knee condition was not related to military service. He also stated that the Veteran's military service did not aggravate or cause the Veteran's back condition. However, the VA examiner did not provide any explanation to support these conclusory opinions. As such, they are inadequate to adjudicate the Veteran's claims. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). At a May 2013 Decision Review Officer hearing, the Veteran claimed that his low back, neck and knee conditions as secondary to his service-connected pes planus. He maintained that his foot condition caused an imbalance in his body, and his altered gait affected his other joints. In December 2013, a VA examiner stated in an opinion that based on a review of the record, he found no supportive evidence that the Veteran's neck, back or knee complaints were the direct and proximate result, or permanently worsened, by his service-connected pes planus. The examiner stated the Veteran had degenerative changes of the neck and back compatible with aging in "a genetically susceptible individual." He also stated the Veteran had mild degenerative changes of the knees that were compatible with aging. However, the examiner provided no explanation for what constituted a "genetically susceptible individual," or why the Veteran was deemed to fit criteria for this undefined designation. Further, the VA examiner failed to address the Veteran's contentions that his service-connected resulted in an altered gait and imbalance in his body that affected his claimed neck, low back and knee conditions. In light of these various deficiencies, the claims must be remanded for new VA examinations and opinions that fully address the Veteran's theories of entitlement. Upon remand, efforts also must be made to obtain any records of VA treatment not associated with the claims file. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records dated from October 2014 to the present and associate them with the Veteran's claims file. If no additional outstanding records are available, this fact should be noted in the Veteran's file. 2. Thereafter, schedule the Veteran for appropriate VA examinations to ascertain the current nature and likely etiology of his neck, low back and bilateral knee conditions, to include whether any condition was caused or aggravated by his service-connected pes planus. The claims folder is to be furnished to the examiner for review in its entirety. Following a review of the relevant evidence, the examiner must address the following questions: (a) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's cervical spine condition was incurred in or aggravated by service? (b) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's cervical spine condition was caused by his service-connected pes planus? (c) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's cervical spine condition was aggravated by his service-connected pes planus? (d) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's low back condition was incurred in or aggravated by service? (e) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's low back condition was caused by his service-connected pes planus? (f) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's low back condition was aggravated by his service-connected pes planus? (g) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's bilateral knee condition was incurred in or aggravated by service? (h) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's bilateral knee condition was caused by his service-connected pes planus? (i) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's bilateral knee condition was aggravated by his service-connected pes planus? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of hypertension or diabetes (i.e., a baseline) before the onset of the aggravation. Detailed rationale is requested for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Then re-adjudicate the Veteran's claims. If the benefit remains denied, issue an appropriate Supplemental Statement of the Case (SSOC), and give the Veteran and his representative an appropriate opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further appellate 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). 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 2014). _________________________________________________ MICHAEL MARTIN 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 your appeal. 38 C.F.R. § 20.1100(b) (2015).