Citation Nr: 1605446 Decision Date: 02/11/16 Archive Date: 02/18/16 DOCKET NO. 08-21 592 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a right foot disorder other than a ganglion cyst of the right foot. 3. Entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from June 1976 to June 1979 and from February to October 1991. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The claims file is now under jurisdiction of the RO in Nashville, Tennessee. The Veteran testified before the undersigned at a hearing conducted at the RO in July 2009. A transcript is of record. The Veteran also was afforded a videoconference hearing before Veterans Law Judge Milo Hawley in October 2015, where the Veteran provided testimony addressing a separately appealed issue of entitlement to a higher rating for a right knee disability. The Veteran did not provide testimony before the undersigned addressing that issue, and that issue was the subject of a separate Board decision issued in December 2015. The Board remanded the above-listed claims in December 2009. They now return to the Board for further review. The RO by an April 2011 decision implicitly granted service connection for a ganglion cyst of the right foot when assigning a temporary 100 percent post-surgical convalescent rating following surgery for the ganglion cyst. Thus, the foot disorder remaining the subject of appeal is any other than the service-connected ganglion cyst. The Veteran's authorized representative by its July 2015 post-remand brief addressed as still pending on appeal the claim of entitlement to service connection for a right foot disorder. Hence, the Board considers some other disorder of the foot to remain the subject of appeal. The record before the Board consists solely of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Most of the Veteran's service treatment records are unavailable, through no fault of the Veteran. Under such circumstances, VA has a heightened obligation to explain its findings and conclusions and to carefully consider the benefit of the doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The few records that are associated with the record do show complaints about the right foot in January 1978, the back in April 1977, and the left thigh in May 1977. The Board remanded the appealed claims in December 2009 for examination to address their nature and etiology as related to service. A detailed review of relevant records follows. This review leads to the conclusion that additional remand is required for an additional medical examination to address the likelihood that service-connected right knee disability aggravated claimed disorders of the low back, right foot, and left knee, as well as to address any direct causal link between service and a right foot disorder (other than a ganglion cyst). An April 1977 service treatment record documents the Veteran's complaint of low back pain which began the day prior when he was moving a desk and felt a sensation of something snapping in his back. The treating clinician assessed low back strain and prescribed Darvon and light duty for three days. A September 1977 service treatment record documents the Veteran's medical facility admission following being thrown from a Jeep and striking his head. He reportedly had awakened, walked around, and then collapsed and lost consciousness. The few service treatment records following this incident had a central neurological focus. In his original claim submitted in March 2007, the Veteran reported onset of his left knee disorder in July 1991, with treatment from July 1991 to August 1991. He reported treatment at the Army Hospital at Fort Bragg, North Carolina. The Veteran's October 1991 service medical examination includes an indication of abnormality in the left knee, status post plica debridement in June 1991. However, a further note in the examination report indicates the right knee, and treatment records from the period of service indicate that the Veteran's right knee was debrided in June 1991, not the left. Hence, it is apparent that the note on the October 1991 examination report erroneously listed the left knee instead of the right as having undergone debridement in June 1991. Service treatment records include no record of treatment for the left knee. These service treatment records also note a history of arthroscopic surgery on the right knee in 1983. They do not note any complaints or medical history in reference to the left knee. Treatment records from Baptist Hospital East from 2007 and 2008 for the knees and low back reflect chronic degenerative changes. A March 2008 treatment notes the Veteran's employment as a supervisor for an automotive company, that he weighs 230 pounds, and that he walks approximately five miles daily as a supervisor. X-ray findings showed osteoarthritis of the left knee without findings consistent with residuals of any acute knee injury. At a February 2008 VA examination the Veteran expressed his belief that his right knee disability had caused some low back spasms and left knee pain. The examiner found moderate right knee disability manifested by reported giving way, instability, pain, weakness, and limitation of motion. The examiner assessed "most likely" patellofemoral syndrome in the right knee, and did not address questions as raised by the Veteran of the right knee disability causing other claimed disability in the left knee and low back. At his July 2009 hearing, the Veteran testified to having injuries in a Jeep accident in service in September 1977. He reported that he had been thrown from the Jeep, landed on the ground, and lost consciousness. He testified to being hospitalized for two or three weeks, and suffering from back spasms following the accident. He added that following the accident he had knee difficulties so that he could not run physical training for a while. He added that shortly after getting out of service, in approximately October or November of 1981, he had arthroscopic knee surgery. The Veteran stated that he had tried to get records of that surgery from the treating physician but it was too long ago and they were no longer available. Upon VA examination in April 2010, the Veteran reported a history of injury to the left knee after a Jeep accident in 1977, with difficulty with the knee since that time. He also reported a history of knee surgery. Also at that examination, the Veteran reported a history of back difficulty with pain since service in 1976, as well as following the Jeep accident in 1977. He reported having recurrent episodes of flare-up of the back pain occurring weekly and lasting one to three days, precipitated by housework and certain chores. He reported that during flare-ups he had difficulty bending and straightening. He also reported having four to five incapacitating episodes in the past 12 months, self-treated with all-day use of a heating pad and medication. He reported occasionally using a back brace. The April 2010 examiner found bony joint enlargement, crepitus, edema, grinding, heat, and effusion in the left knee. There was some limitation of flexion and extension, and objective evidence of pain on motion. The examiner assessed severe osteoarthritis of the left knee. The examiner also found degenerative changes of the thoracolumbar spine with limitation of motion and bilateral spams, as well as observed weight shifting due to pain. The examiner reviewed the record and noted that service and post-service records did not show knee injury or disability proximate to service. The examiner assessed that there was no objective evidence to support a nexus between claimed knee and back problems in service and the degenerative problems with the left knee and low back currently. The examiner noted that degenerative problems with the knees and back are "most commonly secondary to years of common wear and tear and not typically related to one specific injury," and provided this as supporting rationale for the conclusions that current left knee and low back disabilities were unrelated to service. The examiner also supported these conclusions with the observation that upon examination in service in 1991 the Veteran checked boxes indicating no recurrent back pain and no joint pain. The Board believes that the April 2010 VA examination is adequate for purposes of the Board's adjudication of those portions of the Veteran's appealed claims for service connection for low back and left knee disorders which are based on either development of claimed disabilities in service or a direct causal link to service. The examiner provided opinions addressing these questions supported by an analysis that can be weighed against contrary opinions, an analysis thus adequate for the Board's adjudication. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). However, the Board also directed that the examiner was to address whether a right foot disorder was causally related to service, and whether each of the claimed disorders was related to service-connected disability. These questions were not addressed, and this substantial failure of development itself necessitates remand. Substantial compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008). Additional development is also required by evidence indicating the possibility of these claimed disabilities of the low back, right foot, and left knee being aggravated by service-connected right knee disability. Private treatment records by Dr. D. R. document treatment for both knees from 2011 to 2013, including bilateral total knee replacements in April 2011, and revision of these replacements in July 2013. The revisions were required for both knees reportedly due to a presumed allergic reaction to the cement used in the first knee replacements. A February 2011 review by Dr. D. R. (contained among Baptist Hospital East records received in May 2011), addresses the Veteran's right knee disability and provides an assessment that the Veteran's pain from his left knee and right hip were "worsened by transfer of weight due to pain in the right knee." Thus, the record presents the possibility of worsening of claimed disabilities of the low back, right foot, and left knee due to weight shifting as a result of pain in the right knee. This indication of possible aggravation of claimed disabilities by the Veteran's service-connected right knee disability necessitates remand for a further VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran and his authorized representative the opportunity to submit additional evidence or argument in furtherance of the appealed claims. 2. Undertake any additional development to obtain pertinent records, including records of VA and private treatment. 3. Schedule the Veteran for a limited VA examination to determine the nature of current disorders of the low back, right foot (other than a ganglion cyst), and left knee, and to address any direct link between service and a right foot disorder (other than a ganglion cyst), as well as to address causation or aggravation of each of these disorders by the Veteran's service-connected right knee disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Pertinent documents should be reviewed, including VA and private treatments records, and the statements of the Veteran. The examiner should conduct a complete history and physical and assign all relevant diagnoses. All necessary diagnostic testing should be conducted and commented upon by the examiner. For each identified disability of the right foot (other than a ganglion cyst), present at any time during the pendency of the claim, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability either developed in service or is causally linked to service. For each identified disability of (a) the low back, (b) the right foot (other than a ganglion cyst), and (c) the left knee, present at any time during the pendency of the claim, the examiner should provide a separate opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability was caused or aggravated (permanently increased in severity beyond the natural progress of the disease or disability) by the Veteran's service-connected right knee disability. In so doing, the examiner should address the question of increased stress or work-load assigned to the joint due to weight off-loading from the right knee, as suggested by a February 2011 review by private treating physician D. R. (contained among Baptist Hospital East records received in May 2011). A complete rationale should be provided for each opinion and conclusion expressed. 4. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2105). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination must be included in the claims folder and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 5. After all development has been completed, re-adjudicate the claims of entitlement to service connection for disorders of the low back, right foot, and left knee, to include as secondary to service-connected right knee disability. If any benefit sought on appeal is not granted to the fullest extent, issue the Veteran and his representative a Supplemental Statement of the Case and provide a reasonable opportunity to respond before the case is returned to the Board for further appellate review. The Veteran 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 (CONTINUED ON NEXT PAGE) action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ L. M. BARNARD Acting 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) (2014).