Citation Nr: 1715313 Decision Date: 05/08/17 Archive Date: 05/22/17 DOCKET NO. 11-05 509A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a left knee condition, to include as secondary to the service-connected right knee. 2. Entitlement to an increased rating, in excess of 20 percent, for osteoarthritis with retrolisthesis, facet arthropathy, and neuroforaminal stenosis, of the lumbosacral spine. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Timbers, Associate Counsel INTRODUCTION The Veteran served as a member of the United States Army, with active service from April 1978 through April 1998. This appeal comes to the Board of Veterans' Appeals ("Board") from an April 2010 rating decision by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Columbia, South Carolina (hereinafter Agency of Original Jurisdiction ("AOJ")). The Veteran's appeal has previously been before the Board. Most recently, in an August 2014 decision, the Board remanded the Veteran's claims for entitlement to service connection for a left knee disability. The AOJ was requested to obtain an addendum VA medical opinion concerning whether the Veteran's service-connected right knee disability aggravated the Veteran's left knee impairment. Additionally, the August 2014 decision remanded the Veteran's claim for entitlement to an increased disability rating for his lumbar spine disability so that the AOJ could provide the Veteran with an updated VA examination. Such development has been completed and the matter has been properly returned to the Board for appellate consideration. However, as will be discussed in greater detail below, the Board finds that another remand is required before the Board may adjudicate the Veteran's claim for an increased rating of his lumbar spine disability. See Stegall v. West, 11. Vet. App. 268 (1998). The Veteran has previously appeared and testified at a September 2013 video hearing before the Veterans Law Judge. A transcript of this hearing has been reviewed and associated with the Veteran's claims file. However, the Board notes the file contains only a partial transcript of the Veteran's hearing due to malfunctions with the audio recording equipment. The Veteran was informed of this issue in a May 2014 letter and was offered the opportunity for a new hearing. In June 2014, the Veteran informed the VA that he did not wish to appear at another hearing and instead wanted the Board to determine his case based on the evidence of record. Subsequently, the Veteran requested the opportunity for an additional hearing regarding his left knee and lumbar spine disabilities. In a letter dated December 3, 2015, the Veteran, through his representative, withdrew this request for a hearing in lieu of the opportunity for an updated VA examination of his spine. This request for a new VA examination of the spine was reiterated in the January 2016 Appellant's Brief. Through the date of this decision it does not appear that the Veteran has been afforded a new VA examination for his lumbar spine disability. This appeal was processed using Virtual VA and the Veterans Benefits Management System ("VBMS"). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In reviewing the Veteran's electronic file, the Board observes the file includes additional lay reports and medical evidence which were not addressed by the December 2015 Supplemental Statement of the Case. However, the Board finds that the additional evidence is not material to the issue adjudicated herein and does not prejudice the Veteran as the Board is awarding the Veteran a full grant of his claim for service connection. Accordingly the Board finds appellate consideration may proceed without any prejudice to the Veteran. See 38 C.F.R. 20.1304(c). The issue of entitlement to an increased rating for the Veteran's lumbar spine disability is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The Veteran has a left knee disability which is proximately due to or the result of the Veteran's service-connected right knee degenerative joint disease. CONCLUSION OF LAW Resolving all doubt in his favor, the Veteran has a left knee disability secondary to his service-connected right knee degenerative joint disease. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSIONS VCAA Duties to Notify and Assist: With respect to the Veteran's claim herein, the VA has met all statutory and regulatory provisions to notify and assist. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In reaching this conclusion, the Board has reviewed the August 2014 Board remand order with respect to the Veteran's claim for entitlement to service connection for a left knee disability. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the VA has substantially complied with the directives of the Board's August 2014 Remand. Specifically, the Veteran was afforded a new VA examination in June 2015. The Board is aware the Veteran contends this VA examination did not comply with the August 2014 remand directives, as the examiner was not provided with a copy of the remand order. See Correspondence dated April 7, 2016. However, the Board observes that it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). Additionally, the Board is aware of the Veteran's request for a Decision Review Officer hearing for his left knee impairment. See Correspondence dated December 31, 2015. However, this request was made subsequent to the AOJ issuance of the supplemental statement of the case and subsequent to the Veteran's withdrawal for a formal hearing. The Board finds that resolution of the Veteran's claim for service connection may be made without remanding the issue to determine whether the Veteran in fact desires a hearing on his left knee disability. Furthermore, the Board is granting in full the benefit sought on appeal. As the Board is granting the claim for service connection of a left knee disability, the claim is substantiated, and there are no further notice and assistance requirements. Wensch v. Principi, 15 Vet. App. 362, 367-68 (2001). General Rules and Regulations of Service Connection: In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). When determining service connection, all theories of entitlement, direct and secondary, must be considered if raised by the evidence of record, applying all relevant laws and regulations. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary and therefore the Board, must give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; See also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). i. Entitlement to Service Connection for a Left Knee Disability The Veteran is seeking entitlement to a left knee disability, as secondary to his service-connected right knee degenerative joint disease. In statements to the Board, the Veteran contends his left knee disability is a result of his overcompensating for the pain of his right knee. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that it was either caused or aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a), (b); Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc). In determining whether secondary service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). As to the first element of service connection, the Board observes the Veteran is diagnosed with bilateral knee degenerative joint disease. Specifically, a December 2009 magnetic resonance imaging ("MRI") report identified a mild degree of degenerative joint disease in both knees, located mainly at the patellofemoral joint space. See Columbia VAMC Records. Therefore, the Veteran has satisfied the first element of service connection. 38 U.S.C.A. §§ 1110, 1131; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992)(holding that the first and most fundamental requirement for any service-connection claim is the existence of a current disability). Therefore, the question before the Board is whether this left knee disability was either caused by or aggravated by a service connected disability. In this regard, a veteran need not prove that a disability was "completely" (i.e., totally) caused by a service connected disability to prevail on a secondary service connection claim. Rather, proximate cause need only be demonstrated. "Proximate cause" is defined as "[a] cause that directly produces an event and without which the event would not have occurred." See Donnellan v. Shinseki, 24 Vet. App. 167, 173 (2010) (citing Black's Law Dictionary 213 (7th ed. 1999)). A determination of proximate cause is basically one of fact, for determination by adjudication personnel. See VAOPGCPREC 6-2003 and 19-1997. When there are potentially multiple causes of a harm, an action is considered to be a proximate cause of the harm if it is a substantial factor in bringing about the harm and the harm would not have occurred but for the action. See Shyface v. Sec'yofHealth & Human Svs., 165 F.3d 1344, 1352 (Fed. Cir. 1999) (citing RESTATEMENT (SECOND) OF TORTS§§ 430 cmt. d. and 433 cmt. d. (1965)). Throughout the course of his appeal, the Veteran has submitted numerous medical statements from his private nurse practitioner. See Statements from J. McE., dated April 2011, June 2012, and September 2013. In these medical opinion letters, J. McE. reports that the pain of the Veteran's service-connected right knee disability causes him to experience imbalance, and thus place more weight onto his left knee. Additionally, due to the Veteran's chronic service-connected right knee pain, the Veteran has begun to use his left knee more and thus places greater wear and tear onto the left knee joint. As a result of these factors, Nurse J. McE. concludes that it is at least as likely as not that the Veteran's left knee disability is a result of his service-connected right knee disability. The Board finds these medical nexus statements, from Nurse J. McE. to be probative evidence weighing in favor of the Veteran's claim. Notably, the Board finds that these medical nexus statements are corroborated by the Veteran's longitudinal medical treatment records. At various intervals throughout the appeal period, the Veteran has reported significant right knee pain which requires him to compensate and place greater weight onto his left knee. See Columbia VAMC Treatment records. He has additionally reported occasional left knee swelling, for which he takes Naproxen. Considering this evidence in its totality, and in light of the medical opinion statement from Nurse J.McE., the Board finds there is sufficient evidence to conclude that the Veteran's service-connected right knee disability caused the Veteran's current left knee disability. In reaching this determination, the Board is aware the evidentiary record contains multiple VA medical opinions which weigh against the Veteran's claim. Most recently, in response to the Board's August 2014 remand, the Veteran was afforded a VA examination in June 2015. Following a physical examination of the Veteran and a review of his longitudinal medical history, the VA examiner concluded the Veteran's left knee disability was less likely than not caused by or aggravated by his service-connected right knee disability. In support of this determination, the VA examiner referenced the Veteran's imaging reports, which showed "similar" bilateral knee arthritis. Due to the similarity of degenerative changes, the VA examiner concluded the left knee disability was more likely the result of life long wear and tear of the knee joint. However, the Board's review of the cited x-ray, dated in July 2013, does not specify the degree of degenerative changes for each knee. Rather, the x-ray report documents "minimal patellar spurring" of both knees. Therefore, the Board finds that an accurate determination of the degree of wear and tear within the left knee, versus the right, cannot be made solely from this radiology report. The Board additionally finds that the June 2015 VA examiner's opinion does not properly consider the Veteran's lay reports of symptoms. Throughout the longitudinal treatment history for his left knee, the Veteran has described symptoms of overcompensation and overuse of the left knee. These reports have further been corroborated by the Veteran's treating physicians, who have noted the Veteran's tendency to favor his left knee disability. See e.g. July 2013 Columbia VAMC Treatment Records; see also Rock Creek Parkway Medical Records. The June 2015 VA examiner further did not account for the Veteran's reports of right knee pain, which causes him to favor his right knee and thus place greater weight and use onto his left knee. The Board finds that these lay symptomatology support the Veteran's claim for secondary service connection of his left knee disability. Accordingly, secondary service connection for a left knee disability is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board emphasizes that it is granting secondary service connection for a left knee disability on the basis that it is the direct result of service-connected right knee disability, as opposed to aggravation. ORDER Subject to the provisions governing the award of monetary benefits, service connection for a left knee disability, as secondary to the service-connected right knee degenerative joint disease, is granted. REMAND The Board recognizes that the Veteran's claim has been remanded previously; however, while the Board sincerely regrets the additional delay, the Veteran's claim must again be remanded in order to ensure that VA has adequately assisted the Veteran in the development of his claim. First, in its review of the evidentiary record, the Board observes that the Veteran requested and was scheduled for a hearing on April 7, 2016. See Correspondence Dated March 3, 2016; see also Letter dated November 4, 2015. However, the record contains no transcript of this hearing, or any evidence as to whether the Veteran appeared, requested a new hearing, or provided good cause if he did not appear. The Board thus requests the AOJ update the Veteran's claims file to reflect whether this hearing took place. Second, the Board finds the Veteran's June 2015 VA examination for his lumbar spine is inadequate for rating purposes. Specifically, the June 2015 VA examiner reported the Veteran's increased pain, during periods of flare-ups, does not contribute to functional loss. However, the VA examiner then stated that the Veteran's pain causes decreased range of motion, across all planes tested. This report of pain causing decreased range of motion is contrary to the VA examiner's conclusion that the Veteran's pain does not cause functional loss. Furthermore, despite reporting that the Veteran experienced pain with range of motion testing, the VA examiner failed to indicate at which point the Veteran experienced pain during range of motion testing. With regard to limitations during flare-ups, the VA examiner concluded that he was unable to state, "without mere speculation," the extent to which the Veteran was limited during flare-ups because the Veteran was not experiencing a flare-up at the time of the examination. However, the examiner then failed to provide a discussion or analysis of the medical evidence or the Veteran's specific medical history that led to this conclusion, and that the examiner did not explain, as required, whether his inability to provide an opinion regarding any additional functional limitations during flare-ups without "resorting to speculation," merely reflects the limitations of knowledge in the medical community at large, or those of the particular examiner. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2009) (holding that "[i]t must be clear that the physician has considered 'all procurable and assembled data'" and that "the physician must clearly identify precisely what facts cannot be determined" before the Board is entitled to rely upon a speculative medical opinion). The Board additionally finds this examination inadequate for ratings purposes because the VA examiner concluded the Veteran's pain and decreased range of motion does not contribute to a disturbance of the Veteran's gait. However, later in the examination, the VA examiner reports the Veteran's symptoms result in a disturbance of locomotion and impose difficulties on the Veteran's ability to stand for prolonged periods. Accordingly, the Veteran must be afforded a new VA examination that adequately reports the extent to which the Veteran demonstrates objective evidence of pain on motion and that adequately addresses the Veteran's additional functional loss during flare-ups of his lower back symptoms. Finally, as the claim is being remanded, the AOJ should also obtain any outstanding VA treatment records and any additional private treatment records identified by the Veteran. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (c) (2016); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. First, the AOJ should contact the Veteran for clarification as to whether he still desires to appear and testify at a video conference hearing. If the Veteran answers in the affirmative, the AOJ is instructed to schedule the Veteran for a hearing. 2. With any necessary releases, the AOJ should obtain any relevant VA or private medical records of treatment or evaluation of a lumbar spine disability, and associate them with the claims file. 3. After any additional records are associated with the claims file, the AOJ should secure the appropriate VA joints examination to ascertain the current severity and manifestations of the Veteran's service-connected lumbar spine disability. Access to the VBMS and Virtual VA electronic claims files must be made available to the examiner for review. A copy of this Remand must be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. When conducting range of motion testing, the VA examiner is asked to specify at what degree the Veteran experiences pain (e.g. flexion to 60 degrees, with pain beginning at 20 degrees). The examiner should also note the degree at which pain begins with repetitive range of motion testing. If no pain is observed or reported during range of motion testing, the examiner is requested to state that no pain occurred. If the examiner finds that pain is observed during range of motion testing and repetitive range of motion testing, the examiner should then determine whether the lumbar spine disability is productive of functional loss, to specifically include any additional limitation of motion due to pain, weakness, premature or excess fatigability, and incoordination causing additional disability beyond that reflected on the range of motion measurements. Any determination concerning this functional loss should be expressed in degrees of additional range of motion loss. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. For example, the examiner should state that such is not feasible to determine due to a lack of information or due to the limits of medical knowledge. If the determination cannot be made due to a lack of information, the examiner should state what information would allow for such a determination. Additionally, the VA examiner should determine whether the lumbar spine disability is subject to flare-ups of additional increased symptomatology, including increased pain. The examiner is asked to specify how often the Veteran experiences a flare-up of his symptoms and document the frequency. The examiner should identify any additional functional loss resulting from any such flare ups, and should specifically address whether the reported flare-ups of increased lumbar spine symptomatology result in any additional limitation of motion or other functional limitations. In answering the above questions, the examiner is asked to provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. The AOJ should notify the Veteran that it is his responsibility to report for any scheduled VA examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for any scheduled VA examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After completing the above development, the AOJ should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claim for an increased rating of the Veteran's lumbar spine disability. If the benefit sought is not granted, the AOJ must then issue a Supplemental Statement of the Case ("SSOC") and allow the Veteran and his representative an opportunity to respond. 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). ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs