Citation Nr: 1756761 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 09-14 115 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a bilateral knee disorder, diagnosed as chondromalacia patellae, to include as secondary to service-connected bilateral pes planus with plantar fasciitis. 2. Entitlement to service connection for a back disorder, to include as secondary to service-connected bilateral pes planus with plantar fasciitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Cohen, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from June 1992 to February 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Indianapolis, Indiana Regional Office (RO). The Board has recharacterized the issues on appeal to accurately reflect the Veteran's contentions. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In May 2010, a local hearing was held before a Decision Review Officer (DRO) at the Indianapolis, Indiana RO. A hearing transcript is in the record. In February 2011, the Veteran was scheduled for a hearing before a member of the Board. However, the Veteran failed to report to this hearing, did not offer good cause for his failure to report to this hearing and did not request that the hearing be rescheduled. Therefore, the Veteran's request is deemed withdrawn. 38 C.F.R. § 20.704 (2017). In August 2012, the Board, in relevant part, denied the Veteran's claim for service connection for back pain. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans' Claims (Court). In September 2013, the Court vacated the August 2012 Board denial of service connection for back pain and remanded the Veteran's appeal to the Board. In March 2014, the Board remanded the present claims to the RO. A supplemental statement of the case (SSOC) was issued in August 2014. In August 2016, the Board denied the Veteran's claims for service connection for back pain and bilateral knee pain. The Veteran appealed the claims of service connection for back pain and bilateral knee pain to the Court. In June 2017, the Court granted the Parties' Joint Motion for Partial Remand (JMPR), vacated the August 2016 Board denial of service connection for back pain and bilateral knee pain, and remanded the appeal to the Board. The issue of entitlement to service connection for a back disorder secondary to service-connected bilateral pes planus with plantar fasciitis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's bilateral knee chondromalacia was caused by the Veteran's service-connected bilateral pes planus with plantar fasciitis. CONCLUSION OF LAW The criteria to establish service connection for bilateral knee chondromalacia have been met. 38 U.S.C.A. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist VA has a duty to notify claimants about the claims process and a duty to assist them in obtaining evidence in support of their claim. VA issued a May 2006 letter to the Veteran which informed him of the evidence generally needed to support his claims; what actions he needed to undertake; and how VA would assist him in developing his claims. The May 2006 letter was issued to the Veteran prior to the May 2007 rating decision. All identified and available relevant documentation has been secured to the extent possible and all relevant facts have been developed. There remains no question as to the substantial completeness of the claim. 38 U.S.C. §§ 5103, 5103A, 5107 (2012). For these reasons, the Board finds that the VA's duties to notify and to assist have been met. II. Analysis Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection shall be granted on a secondary basis under 38 C.F.R. § 3.310 where it is demonstrated that a service-connected disorder caused or aggravated a nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran's bilateral pes planus with plantar fasciitis is service connected. Although development of the claim has focused primarily on whether the Veteran has a bilateral knee disorder that was directly caused by any incident of active service, In May 2017, the Veteran was afforded a VA examination. The examiner noted the Veteran's previous diagnoses of chondromalacia in both knees, and found that the knee disorder was caused by the service-connected bilateral pes planus with plantar fasciitis because it can place abnormal stress forces on the knees due to improper weight bearing. Resolving all reasonable doubt in favor of the Veteran, service connection is warranted and the claim is granted. The Board expresses no opinion regarding the severity of the disorder. The RO will assign an appropriate disability rating on receipt of this decision. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as although related, each having a distinct meaning as specified by Congress). ORDER Service connection for bilateral knee chondromalacia is granted. REMAND The Board has no discretion and must remand the issue of service connection for a back disorder to comply with the Court's June 2017 JMPR. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the JMPR). The JMPR states that the May 2016 VA addendum medical opinion is inadequate, and that the Board must remand to obtain an adequate VA medical opinion. The case is REMANDED for the following actions: 1. Return the file to the VA examiner who conducted the August 2014 VA medical examination. If the examiner is not available, have the file reviewed by a similarly-qualified examiner. Another examination is not required; however, if the VA examiner indicates that he or she cannot respond to the Board's questions without examination of the Veteran, another examination should be afforded to the Veteran. All relevant medical and non-medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner must respond to the following inquiries: a. Is the Veteran's current back disorder, to include recurrent lumbosacral strain caused by: any incident or incidents or active service; the service-connected bilateral knee disorder, ;r; the service-connected bilateral pes planus with plantar fasciitis? Although the examiner must review the VBMS file, his or her attention is drawn to the following: THE EXAMINER IS ADVISED THAT THE FACTUAL SUMMARIES AS PRESENTED IN THE JUNE 2010 AND MAY 2016 VA MEDICAL OPINIONS ARE NOT FULLY INFORMED AS TO THE EVENTS OF THE VETERAN'S SERVICE MEDICAL HISTORY. THE EXAMINER IS THEREFORE ADVISED AS FOLLOWS: * In an August 1992 medical care screening note, the Veteran was diagnosed with lumbar region myospasm and reported back pain and soreness due to carrying a load on a march. * In an August 1992 basic training and AIT profile sheet, the Veteran was diagnosed with lumbar myospasms and the service medical examiner recommended that the Veteran be excused from several physical activities. * In a January 1993 medical care screening note, the Veteran reported back pain and stated that he fell on the ice. * In a March 1995 emergency care and treatment record, the Veteran reported involvement in a motor vehicle accident with a complaint of upper back pain. * In a March 2006 VA treatment record, the examiner indicated that back pain is expected after the Veteran removes a stent from the end of his penis. * In an April 2007 VA treatment record, the Veteran reported experiencing back pain. * A March 2008 roentgenological report indicated phase #2 degeneration of the cervical and lumbar spine. * In an April 2009 private treatment record, Dr. Smartt noted the Veteran's long history of back pain, unremarkable neurological exam, no sign of pinched back nerves and lower back tenderness and tightness. * In a May 2009 private treatment record, the Veteran's back pain was noted as stable and advised to continue medication. * A June 2010 spine lumbosacral radiology report that indicated a muscle spasm and minimal retrolisthesis L5-S1. * In a March 2013 VA treatment record, the Veteran reported back pain. * In a November 2013 VA treatment record, the Veteran reported back pain. * In a June 2014 VA treatment record, the Veteran reported chronic back pain and stated that his back pain began during service. * In a July 2014 VA treatment record, the Veteran reported constant back pain. * A July 2014 radiology report for the lumbar spine that indicated slight levoscoliosis centered at L4-L5, normal AP alignment and no degenerative changes, and for the thoracic spine that indicated no acute or chronic bone abnormality. * In an August 2014 VA examination, the examiner opined that the Veteran's back pain was not caused by service but rather due to natural causes. * In a September 2014 VA treatment record, the Veteran reported constant low back pain. * In a December 2014 private treatment record, Dr. Smartt examined the Veteran's back and indicated that the Veteran had midline tenderness and a mild spasm. * In an October 2015 VHA medical opinion, the medical specialist opined that the Veteran's current back disorder was not caused by service, and was not caused or aggravated by his service-connected bilateral pes planus with plantar fasciitis. 2. THE RO IS REQUESTED TO ENSURE THAT PRIOR TO READJUDICATION, ANY MEDICAL OPINION IS BASED ON A CORRECT AND INFORMED REVIEW OF THE RECORD, IN PARTICULAR THE SERVICE TREATMENT HISTORY. Readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran should be provided an SSOC. An appropriate period of time should be allowed for response before the case 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 (2012). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs