Citation Nr: 1620046 Decision Date: 05/17/16 Archive Date: 05/27/16 DOCKET NO. 07-38 815 ) ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability, to include as secondary to service-connected bilateral knee disorders. 2. Entitlement to an increased rating for chondromalacia patella, right knee, currently rated 10 percent. 3. Entitlement to an increased rating for chondromalacia patella, left knee, currently rated 10 percent. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1974 to January 1977. He thereafter had additional service with the Mississippi Army National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In August 2014, the Board denied the claim, and the Veteran appealed to the United States Court of Appeals for Veterans Claims. In December 2015, the Court granted a joint motion for remand. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In its August 2014 decision, the Board concluded that service connection was not warranted for a low back disability. The parties to the joint motion found that the examination on which the Board relied to come to this conclusion was inadequate, and that the evidence also reasonably raised a theory of entitlement to service connection for a low back disability as secondary to the Veteran's service-connected bilateral knee disability, as reflected on the title page. Specifically, the December 2013 VA examination was inadequate for several reasons. First, the examiner failed to address whether the Veteran's spinal degenerative changes existed prior to a November 1993 post-service injury. Second, the opinion was based, at least in part, upon performing duties of an infantryman, which was incorrect. Rather, the Veteran's correct military occupation specialty was a "ground surveillance radar crewman." Finally, the parties noted that the Veteran's November 1976 separation examination report contained blank "normal" and "abnormal" columns with the exception of the space reserved for the examination of the lower extremities and a space reserved for identifying body marks, scars, or tattoos. Thus, it was unclear whether a physical examination of the spine was performed. A remand is therefore required for a VA examination and opinion to address these issues, after which the AOJ should address the findings when readjudicating the claim. The parties also indicated that the Board did not address a March 2010 lay statement from Walter Bouie of his personal awareness that the Veteran suffered from back pains in 1975 following a 1975 jeep accident, recorded in April and May 1975, and April 1976 service treatment records. Thus, on remand, the examiner should also address whether the Veteran's current back disability is related to service, to include the 1975 jeep accident. Finally, the parties noted that the Veteran's Social Security Administration records were relevant and were not obtained, as the Veteran indicated that he received disability for "spinal disorders" in the November 2011 VA examination. Therefore, the Veteran's records relied upon in awarding him Social Security benefits must be requested on remand. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The Board notes that the Veteran filed claims for an increased rating for his bilateral knee disability in April 2006 and in May 2015. Regarding the April 2006 claim, the RO denied the claims in a February 2007 rating decision, and on appeal, the Board also denied the claim in December 2012. The Board decision subsumed the RO decision, 38 C.F.R. § 20.1104 (2015), and became final on the date stamped on the face of the decision. 38 C.F.R. § 20.1100(a) (2015). The Veteran's subsequent May 2015 claim was denied in a June 2015 rating decision. The Veteran filed a notice of disagreement with the rating assigned in July 2015 on a VA Form 21-0958. 38 C.F.R. § 20.201(a)(1). The AOJ sent a December 2015 letter that indicated that the Veteran's increased rating claim for his bilateral knee disability was on appeal, and thus, would not be addressed, but does not appear to have issues a statement of the case (SOC). A remand is therefore warranted for issuance of a SOC. See 38 C.F.R. § 19.9(c) (2015), codifying Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Request from Social Security Administration copies of all medical records underlying the award of disability benefits. 2. Issue an SOC addressing the issues of entitlement to increased ratings in excess of 10 percent for right and left knee chondromalacia patella. In the event the Veteran wants to perfect an appeal on this issue, a timely substantive appeal would be required. Without a substantive appeal being submitted, the Board will not have jurisdiction over these issues. 3. Schedule the Veteran for a VA examination as to the nature and etiology of any current back disability. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should answer the following questions: (a) Whether is it at least as likely as not (50 percent probability or more) that the Veteran's current back disability is etiologically related to the Veteran's military service, to specifically include consideration of the 1975 jeep accident and the lay statements of records and consideration of whether the Veteran's spinal degenerative changes indicated on the November 1993 X-ray existed prior to the November 1993 post-service injury. (b) Whether it is as least as likely as not (50 percent probability or more) that the Veteran's current back disability is either (a) caused or (b) aggravated by his service connected right and left knee disorders. A complete rationale should accompany any opinion provided. The examiner is advised that the Veteran's military occupation specialty was a "ground surveillance radar crewman." Additionally, the examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. 4. After the above action is completed, readjudicate the claim for service connection for a low back disability to include as secondary to service connected bilateral knee disorders. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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 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). _________________________________________________ Jonathan Hager 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).