Citation Nr: 1800581 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-13 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a lumbar spine disability, to include as secondary to a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Owen, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1998 to November 1999 and from November 2004 to February 2006 with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied service connection for low back and right knee disabilities. In May 2017, the Veteran testified at a videoconference hearing before the undersigned Veteran's Law Judge. A transcript of the hearing is associated with the claims file. After the hearing, the Veteran submitted additional evidence without waiver of RO review. In addition, the Veteran submitted additional evidence at the time he filed his substantive appeal. The Board may consider these additional records submitted without Agency of Original Jurisdiction (AOJ) review. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial AOJ review of evidence submitted by the Veteran to the AOJ or to the Board at the time of or subsequent to the submission of a substantive appeal filed on or after February 2, 2013, unless the claimant or claimant's representative requests in writing that the AOJ initially review such evidence). This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Board notes that the record reflects that the Veteran's service treatment records are missing and are not associated with the claims file despite numerous attempts to obtain these records. A December 2013 VA memorandum of formal finding details the efforts to obtain these records and indicates that the Veteran has been informed of their unavailability and did not have complete copies of her service records to submit. Right knee disability The Veteran contends that service connection is warranted for a right knee disability. Specifically, she states that while riding a bus, a person sat down in front of her and the seat jammed into her knee and that her knee has bothered her ever since. Service treatment records associated with the Veteran's claims file reflect that in July 2005, the Veteran presented with right knee pain and reported that her knee was injured when it was slammed by the seat in front of her on a bus in May 2005. Upon examination, pain was localized under the knee cap, with crepitus and pain found during a patella grind test. The Veteran was diagnosed with patellofemoral syndrome and prescribed ice and naproxen. A January 2006 post-deployment health assessment reflects that the Veteran denied swollen, stiff, or painful joints, back pain, and muscle aches. A July 2006 VA Gulf War examination report reflects that the Veteran reported having right knee pain on and off for the prior year after injuring her knee while traveling on a bus in May 2005. The Veteran reported a history of popping sensation and occasionally a sensation of giving way, but denied locking or using a brace. Upon examination, the examiner found crepitus of the right knee. An associated imaging study revealed minimal degenerative changes. The examiner concluded that, based on the examination, there was no evidence of significant right knee abnormalities. Post-service treatment records reflect that in March 2007, the Veteran reported intermittent, moderate right knee pain, with gradual onset of several years prior. An August 2011 letter from the Veteran's treating chiropractor states that the chiropractor began seeing the Veteran in March 2007, when she presented with primary complaints of right knee pain and lower back pain, reportedly due to her prior Army service. A May 2017 letter from the Veteran's treating chiropractor noted that the Veteran had been treated over the years for neck and back pain, and most recently had complaints of low back pain and right knee pain. The chiropractor noted the Veteran was diagnosed with patellofemoral syndrome in July 2005, which can cause pain and altered movement in the knee and hip. The Veteran reported that during deployment, she carried 60 pounds of extra gear on her shoulders on a daily basis and that she injured her knee when someone sat down on a seat in front of her and jammed the seat into her knee. The evidence of record suggests that the Veteran's current right knee disability may be related to service. Specifically, the Veteran reports right knee pain since service, which she relates to an incident on a bus. Service treatment records reflect complaints of right knee pain in service, diagnosed as patellofemoral syndrome, and post-service treatment records reflect continued reports of right knee pain. However, there is no VA nexus opinion or adequate private nexus opinion between the Veteran's in-service complaints and any current right knee disability. Therefore, the evidence of record is insufficient to decide the claim and a VA examination and medical opinion is needed. See 38 U.S.C. § 5103A(d)(2) (2012); 38 C.F.R. § 3.159(c)(4)(i) (2017); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Low back disability The Veteran contends that service connection is warranted for a low back disability. Specifically, the Veteran testified that towards the end of deployment, she was lifting and moving heavy equipment while wearing full gear when her back locked in a 45 degree angle and she could not stand up. See May 2017 hearing transcript. Service treatment records associated with the Veteran's claims file are silent with regards to complaints of or treatment for low back pain. A January 2006 post-deployment health assessment reflects that the Veteran denied swollen, stiff, or painful joints, back pain, and muscle aches. A July 2006 VA Gulf War examination report reflects that upon objective examination, the Veteran could stand erect without support, there was no tenderness of the paraspinal muscles, and the movements of the cervical spine were normal. The Veteran denied back problems. Post-service treatment records reflect that in March 2007, the Veteran sought treatment for intermittent, mild-to-moderate lumbar spine pain, with gradual onset of several years prior. Imaging studies revealed a mild increase of the lordotic lumbar curve, but no evidence of fracture, dislocation, or gross pathology. Scoliosis was absent, intervertebral foramen were patent, and bone density, vertebral bodies, pedicles, facet joints, sacroiliac joints, femoroacetabular joints, and the soft tissues appeared normal. The Veteran was diagnosed with closed dislocation of the lumbar and thoracic vertebra and myofasciitis. An August 2011 letter from the Veteran's treating chiropractor states that the chiropractor began seeing the Veteran in March 2007, when she presented with primary complaints of right knee pain and lower back pain from her prior Army service. A May 2017 letter from the Veteran's treating chiropractor noted that the Veteran had been treated over the years for neck and back pain, and most recently had complaints of low back pain and right knee pain. The chiropractor noted the Veteran was diagnosed with patellofemoral syndrome in July 2005, which can cause pain and altered movement in the knee and hip. The Veteran reported that during deployment, she carried 60 pounds of extra gear on her shoulders on a daily basis, that she injured her knee when someone sat down on a seat in front of her and jammed the seat into her knee, and that at one point, her back locked in a 45 degree angle and continued to do so on occasion. The chiropractor opined that any interruption in the symmetry of lower limbs, hips, or gait can be a contributing factor to spinal issues. The evidence of record suggests that the Veteran's current low back disability may be related to service. Specifically, the Veteran reports experiencing low back pain in service, which she relates to wearing full gear and lifting heavy equipment, and experiencing pain since service. Post-service treatment records reflect reports of low back pain and a diagnosis of closed dislocation of the lumbar vertebra and myofasciitis. The Veteran's treating chiropractor has opined that lumbar pain could be secondary to a knee disability. However, the Board finds that this opinion in inadequate to establish service connection, as the Veteran's chiropractor did not provide a basis or rationale in support of a link between the Veteran's low back disability and her right knee disability. Furthermore, medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010). Applicable regulations also provide that a finding of service connection may not be based on a resort to speculation or a remote possibility. See 38 C.F.R. § 3.102 (2017). Speculative language such as "could" does not create an adequate nexus for the purposes of establishing service connection. See Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative). There is no VA nexus opinion or adequate, non-speculative, private nexus opinion between the Veteran's reported in-service injury and any current low back disability. Therefore, the evidence of record is insufficient to decide the claim and a VA examination and medical opinion is needed. See 38 U.S.C. § 5103A(d)(2) (2012); 38 C.F.R. § 3.159(c)(4)(i) (2017); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to assess the nature and etiology of any currently diagnosed right knee disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must conduct any testing deemed necessary and provide all findings such as range of motion, stability, etc. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater possibility) that any identified right knee disability began during active service, or whether it is at least as likely as not that any arthritis is related to any incident of service; or, began within one year after discharge from active service. In rendering the above opinion, the VA examiner should consider and discuss the lay evidence of record, including statements from the Veteran concerning onset of symptoms. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions, based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 2. Schedule the Veteran for a VA examination to assess the nature and etiology of any currently diagnosed low back disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must conduct any testing deemed necessary and provide all findings such as range of motion, stability, etc. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. The examiner must provide an opinion as to (a) Whether it is at least as likely as not (50 percent or greater possibility) that any identified low back disability began during active service, or is related to any incident of service; or, whether it is at least as likely as not that arthritis began within one year after discharge from active service. (b) If it is determined that a low back disability did not begin during service or is not otherwise related to any incident of active service, the examiner must opine as to whether it is at least as likely as not that any currently diagnosed low back disability is caused by or aggravated (i.e., worsened beyond the natural progression of the disability) by the Veteran's right knee disability. If the examiner finds that a low back disability is aggravated by a right knee disability, then he or she should quantify the degree of aggravation, if possible. In rendering the above opinion, the VA examiner should consider and discuss the lay evidence of record, including statements from the Veteran concerning onset of symptoms, as well as the opinion provided by the Veteran's treating chiropractor. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions, based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 3. After completing the above, and any other development as may be indicated, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remains denied, the Veteran and her representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The appellant 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. §§ 5109B, 7112 (2012). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).