Citation Nr: 1754445	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  14-14 179	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

1.  Entitlement to service connection for lumbar spine degenerative disc disease.  

2.  Entitlement to service connection for right knee degenerative joint disease.  

3.  Entitlement to service connection for left knee degenerative joint disease.  


REPRESENTATION

Veteran represented by:	National Association for Black Veterans, Inc.


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

Saira Spicknall, Counsel


INTRODUCTION

The Veteran served on active duty from September 1968 to June 1971.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Milwaukee, Wisconsin Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge of the Board (video conference hearing) in February 2017.  A transcript of that hearing has been associated with the claims file.  

The issues of whether there is new and material evidence to reopen previously denied claims of entitlement to service connection for degenerative arthritis of the shoulders, hands, hips, ankles and feet have been raised by the record in the February 2017 video conference hearing, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Although the Veteran argued in the February 2017 hearing that he intended to appeal these issues along with those currently on appeal, his December 2011 notice of disagreement (NOD) specified his intention to appeal only the issues of service connection for disabilities of the back and knees.  In addition, as it has been over a year since the issuance of the March 2011 rating decision, his February 2017 hearing testimony cannot be construed as a timely NOD.  Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017).  

The issues of entitlement to service connection for degenerative joint disease of the right and left knees are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

Resolving reasonable doubt in the Veteran's favor, the probative evidence of record demonstrates the Veteran's lumbar spine degenerative disc disease is etiologically related to an in-service injury, event, or disease.


CONCLUSION OF LAW

The criteria for the establishment of service connection for lumbar spine degenerative disc disease are met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist 

The Board finds that the RO has substantially satisfied the duties to notify and assist, as required by the VCAA.  See 38 U.S.C. § 5103; 38 C.F.R. § 3.159 (2017).  To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this issue given the fully favorable nature of the Board's decision.  

Analysis

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017).  In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Service connection requires competent evidence showing:  (1) the existence of a present 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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

The probative evidence of record demonstrates that lumbar spine degenerative disc disease is etiologically related to the Veteran's active service.  The medical evidence of record reflects the Veteran has a current diagnosis of lumbar spine degenerative disc disease.  See November 2010 VA examination.  STRs demonstrate the Veteran was treated for a sore back and low back pain in June 1968 and muscle spasm of the back in August 1969.  Although the November 2010 VA examiner found that it was less likely than not that the Veteran's lumbar spine degenerative disc disease was "directly caused or permanently aggravated" by his active service, in a February 2017 letter, a private physician found that the Veteran's current chronic low back pain was directly related to the repeated injuries to the lumbar spine during active service.  Accordingly, the Board finds the probative medical records, taken together, at the very least places the evidence in a state of relative equipoise as to whether the Veteran's lumbar spine degenerative disc disease was incurred during active service.  On this point, therefore, the Board must resolve doubt in the Veteran's favor and grant the claim for service connection for lumbar spine degenerative disc disease.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  


ORDER

Service connection for lumbar spine degenerative disc disease is granted.  



REMAND

In the November 2011 VA examination and opinion, the VA examiner found it was unlikely that the Veteran's current knee condition was directly caused or permanently aggravated by his time in active service.  However, the examination did not address the Veteran's lay statements and testimony regarding trauma to the knees in service due to his primary duties of truck driving and his initial treatment at VA within a year of his separation from active service.  See February 2017 video conference hearing transcript.  Moreover, although the examiner noted the Veteran was treated for knee problems in 1968, he failed to also note the instance of right knee pain reported in December 1969, at which time the Veteran was being treated for the left ankle.  Therefore, the claims for entitlement to service connection for degenerative joint disease of the right knee and left knee must be remanded to afford the Veteran a supplemental VA opinion regarding this matter.  McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Locklear v. Nicholson, 20 Vet. App. 410 (2006); see Waters v. Shinseki, 601 F.3d 1274, 1276 (2010).

As the record reflects the Veteran has received continuing treatment at VA, any outstanding and current ongoing medical records should also be obtained.  38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).  

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the claims file all outstanding pertinent VA and private medical records the Veteran adequately identifies.  

2.  Upon receipt of all additional records, obtain a supplemental medical opinion from the VA examiner who provided the November 2011 VA examination, or if unavailable, another qualified examiner.  The Veteran's electronic claims file, to include a copy of this remand, must be made available prior to completion of the evaluation.  

The examiner is asked to review the Veteran's service treatment records (STRs) demonstrating treatment for complaints in both knees on several occasions in 1968 and 1979 and his February 2017 video conference hearing testimony.  

The examiner is then asked to answer whether it is at least as likely as not (50 percent or greater probability) that a left and/or right knee disability was incurred during the Veteran's active service, arthritis was manifested within a year of his separation from active service, or was otherwise caused by the Veteran's military service (i.e. his testimony noting trauma to the knees while performing duties as a truck driver during active service).  

It is essential the examiner provide explanatory rationale for opinions on these determinative issues, if necessary citing to specific evidence in the file supporting conclusions.  

3.  Ensure the examiner's opinions are responsive to the determinative issues of etiology at issue in this appeal.  If not, return the report(s) for all necessary additional information.  

4.  Then readjudicate the claims of service connection for right knee and left knee degenerative joint disease in light of this and all other additional evidence.  If these claims continue to be denied or are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them time to respond to it before returning the file to the Board for further appellate consideration of these claims.  

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 action must be handled in an expeditious manner.  See 38 U.S.C. § 5109B, 7112 (2012).




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs