Citation Nr: 1611441 Decision Date: 03/22/16 Archive Date: 03/29/16 DOCKET NO. 10-12 045 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder as secondary to service-connected right knee disability. 2. Entitlement to service connection for a left knee disorder as secondary to service-connected right knee disability. 3. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the right knee with limitation of flexion. 4. Entitlement to a disability rating higher than 10 percent for removal of cartilage, semilunar, right knee. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran had active military service from March 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In that decision, the RO denied the Veteran's claims for service connection for a lumbar spine disorder and a left knee disorder, as well as his claim for an increased rating for his service-connected removal of cartilage, semilunar, right knee. In addition, in that decision the RO granted service connection for degenerative joint disease of the right knee with limitation of flexion, assigning an initial 10 percent disability rating. On his March 2010 VA Form 9, the Veteran requested a hearing before a Veterans Law Judge. See 38 C.F.R. § 20.704(b) (2015). However, before such a hearing could be scheduled, the Veteran submitted a written statement to VA in April 2012 indicating that he wished to withdraw his request for a hearing. Accordingly, the Board finds that the Veteran's request for a hearing has been withdrawn. 38 C.F.R. § 20.704(d) (2015). REMAND The Board finds that further development is necessary before a decision can be reached on the merits of the Veteran's claims. A review of the claims file reflects that the Veteran has received ongoing treatment at the Phoenix VA Health Care System. Records in the file specifically document treatment from care providers at facilities associated with the Phoenix VA Health Care System, dated most recently in August 2009. However, the Veteran stated in a March 2010 letter to VA that he has continued to receive ongoing treatment at the Phoenix VA facility. No records for the period more recent than August 20009 from the Phoenix VA Health Care System are present in the record. The Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically in the claims file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, as the identified VA medical records may have a bearing on the Veteran's claim, on remand the AOJ must attempt to obtain the above-identified medical records, along with any other examination or treatment records from the Phoenix VA Health Care System, dated from August 2009 to the present. All records obtained must be associated with the claims file. If any records sought are determined to be unavailable, the Veteran must be notified of that fact pursuant to 38 C.F.R. § 3.159(e) (2015). In addition, at his August 2015 VA examination, the Veteran reported that he had sought treatment from a private treatment provider within the past year for his lumbar spine complaints. Therefore, as the identified private records may have a bearing on the Veteran's claims, the AOJ must attempt to obtain all available treatment records from any private physician identified by the Veteran. If any records sought are determined to be unavailable, the Veteran must be notified of that fact pursuant to 38 C.F.R. § 3.159(e) (2015). The law provides that service connection on a secondary basis is warranted when it is shown that disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2015). This includes disabilities aggravated or made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Pursuant to 38 U.S.C.A. §§ 1110 and 1131 and 38 C.F.R. § 3.310(a), when aggravation of a Veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such Veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See id. at 448. The Veteran was provided VA examination in August 2015 concerning his service connection claims. At that time, the examiner diagnosed degenerative joint disease of the left knee and degenerative joint disease and degenerative disc disease of the lumbar spine. The examiner opined that it is less likely than not that either disorder has been caused or aggravated by the Veteran's service-connected right knee disabilities. However, the Board finds that the examiner failed to provide sufficient rationale in rendering this opinion. In that connection, the examiner stated that there is "nothing in the right knee exam including signif[icant] change of gait" that would lead to the back disorder the Veteran experiences. He made a similar finding regarding the Veteran's left knee disorder. The Board notes, however, that in both previous VA examinations, conducted in December 2007 and January 2010, the Veteran was found to have an antalgic gait; he has also been noted to use a cane. In addition, with regard to aggravation, the examiner stated only that the Veteran's left knee and lumbar spine disabilities are "due to genetics and or other causations rather than being caused by and or made worse by the [service-connected] right knee." VA's duty to assist includes affording the claimant an examination or obtaining a medical opinion when there is competent evidence that a claimant has a current disability, or persistent or recurrent symptoms of a disability; there are indications that the disability may be associated with active service; and the record is insufficient to decide the claim. See 38 U.S.C.A. § 5103A(d) (West 2014). Under relevant VA regulations, action should be undertaken by way of obtaining a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: 1) contains competent evidence of diagnosed disability or symptoms of disability; 2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, which may be established by competent lay evidence; and 3) indicates that the claimed disability may be associated with the in-service event, injury, or disease. 38 C.F.R. § 3.159(c)(4) (2015). See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong of Section 3.159(c)(4), which requires that the evidence of record "indicate" that the claimed disability or symptoms may be associated with service, is a low threshold. The Board further notes that the Court has held that once VA undertakes the effort to provide an examination when developing a claim for service connection, even if not statutorily obligated to do so, it must provide an adequate one. See Woehlaert v. Nicholson, 21 Vet. App. 456, 464 (2007), citing Barr, 21 Vet. App. at 311; 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"). Here, however, the examiner did not offer sufficient explanation for his opinion that it was less likely than not that the Veteran's currently diagnosed left knee degenerative joint disease of the left knee and degenerative joint disease and degenerative disc disease of the lumbar spine were aggravated by his service-connected right knee disabilities, which require the use of a cane and have been noted on multiple occasions to cause an antalgic gait. Thus, the Board finds that additional VA medical opinion is required. See 38 C.F.R. § 4.2 (2015) (where an examination report does not contain sufficient detail, it is inadequate for evaluation purposes); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (a medical examination report must contain clear conclusions with supporting data and a reasoned medical explanation connecting the two); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). The Board finds that there is insufficient competent medical evidence on file to make a decision and must therefore remand to obtain additional medical nexus opinion regarding the etiology of the Veteran's claimed left knee and lumbar spine disorders. 38 U.S.C.A. § 5103A (West 2014); McLendon, 20 Vet. App. 79. Specifically, on remand the AOJ must arrange for the issuance of a medical opinion by the examiner who offered the August 2015 opinions concerning the Veteran's claimed left knee disorder and lumbar spine disorder. In rendering an addendum opinion concerning these claims, the examiner must comprehensively discuss whether it is at least as likely as not that the Veteran's currently diagnosed left knee degenerative joint disease of the left knee and degenerative joint disease and degenerative disc disease of the lumbar spine have been caused or worsened by his service-connected right knee disabilities. The opinions must be based upon consideration of the Veteran's documented history and assertions through careful consideration of all records in the Veteran's claims file. Such opinions are needed to fully and fairly evaluate the claims of service connection for a left knee disorder and a lumbar spine disorder. See 38 U.S.C.A. § 5103A(d) (West 2014). If further examination of the Veteran is necessary, such must be undertaken and such findings included in the examiner's final report. The AOJ must arrange for the Veteran to undergo examination, however, only if the August 2015 VA examiner is unavailable or if such examination is needed to answer the questions posed. Accordingly, the case is REMANDED for the following action: 1. The AOJ must obtain from the Phoenix VA Health Care System any available medical records not currently of record pertaining to the Veteran's evaluation or treatment from August 2009 to the present. The AOJ must follow the procedures set forth in 38 C.F.R. § 3.159(c) (2015) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. If any records sought are determined to be unavailable, the Veteran must be notified of that fact pursuant to 38 C.F.R. § 3.159(e) (2015). 2. After obtaining any necessary authorization from the Veteran, the AOJ must request all available medical records pertaining to the Veteran's examination or treatment from any private physician he identifies as having provided treatment for or opinion concerning his knees or his lumbar spine. The procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records must be followed. All records and/or responses received must be associated with the claims file. If any records sought are determined to be unavailable, the Veteran must be notified of that fact and given opportunity to provide the records. 3. The Veteran's claims file must be referred to the physician who provided the August 2015 VA opinions. The entire claims file, to include a complete copy of this remand, must be made available to and reviewed by the examiner. The reviewer's report must reflect consideration of the Veteran's medical history and assertions. The examiner must provide a thorough and well-reasoned rationale for all opinions provided. The VA examiner must provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran's currently diagnosed degenerative joint disease of the left knee and degenerative joint disease and degenerative disc disease of the lumbar spine have been caused or made chronically worse by his service-connected right knee disabilities. The examiner must discuss the Veteran's contentions regarding the aggravation of his left knee and lumbar spine disorders by his right knee disabilities, as well as his noted antalgic gait and use of a cane for ambulation, in the context of any negative opinion. (If the reviewer is no longer available, or the reviewer determines that another examination is necessary to arrive at any requested opinion, an examination should be scheduled and the Veteran notified that failure to report to any scheduled examination, without good cause, could result in a denial of his claim. See 38 C.F.R. § 3.655(b) (2015). The examiner should provide the opinions requested above.) 4. After completing the requested actions and any additional notification and/or development deemed warranted, the claims on appeal must be adjudicated in light of all pertinent evidence and legal authority. If any claim is denied, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded the appropriate time period for response before the claims file 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 2014). _________________________________________________ THOMAS H. O'SHAY 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).