Citation Nr: 1801061 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-26 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a low back disorder, to include as secondary to service-connected right knee mild patellofemoral syndrome. 2. Entitlement to an initial rating in excess of 10 percent for right knee mild patellofemoral syndrome. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Clark, Associate Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) from October 2007 to February 2008 and in August 2008, and served on active duty from May 2009 to May 2010. He is the recipient of numerous awards and decorations, to include the Combat Infantryman Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). With regard to the Veteran's right knee disability, he was afforded a VA examination in October 2010 and an addendum opinion was obtained in February 2011 to ascertain the nature and severity of such disability. Thereafter, in a January 2013 statement, the Veteran noted that his range of motion had worsened since his VA examination. Thus, the AOJ scheduled the Veteran for VA examinations in October 2014 and November 2014, but he did not show for such examinations. However, a review of the record indicates that the Veteran may not have received notice of such examinations. Specifically, the October 2014 letters notifying the Veteran that examinations had been requested were mailed to addresses that were later revealed to be incorrect. Thus, it does not appear that the Veteran received notice for such examinations and the Board finds that a remand is warranted in order to reschedule the Veteran for a VA examination to determine the nature and severity of his right knee disability, and to send notification of such examination to the Veteran's current address. The Veteran is also reminded that it is his burden to keep VA apprised of his whereabouts. If he does not do so, there is no burden on the part of VA to turn up heaven and earth to find him. Hyson v. Brown, 5 Vet. App. 262 (1993). Furthermore, since the Veteran's most recent VA examination, the United States Court of Appeals for Veterans Claims (Court) made a precedential finding that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). In this regard, it does not appear that all of Correia-compliant testing was conducted in connection with the Veteran's previous examination, or that the VA examiner explained why such testing could not be conducted or was not necessary. Thus, on remand, the new VA examination should address such inquiries and a retrospective opinion should be included as to the findings of the prior examination. Moreover, the Court also found that, depending on the frequency and duration, an attempt should be made to schedule the Veteran for an examination during a flare-up. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Ardison v. Brown, 6 Vet. App. 405 (1994); Voerth v. West, 13 Vet. App. 117 (1999). The examiner should also offer flare-up opinions based on estimates derived from information procured from relevant sources, including the lay statements of the Veteran, and the examiner's determination in that regard should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. Sharp, supra; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Additionally, a medical opinion that cannot be provided without resort to speculation is adequate when it is clear that it is predicated on a lack of knowledge among the medical community at large and not the insufficient knowledge of the specific examiner. Sharp, supra; see also Jones v. Shinseki, 23 Vet. App. 382 (2010). At the April 2017 Board hearing, the Veteran testified that he experienced flare-ups that limited the range of motion of his right knee. Thus, if possible, the Veteran should be afforded a VA examination during a flare-up. Additionally, if the examination is not being conducted during a flare-up, the examiner should elicit relevant information as to the Veteran's flare-ups or ask him to describe the additional functional loss, if any, he experiences during flare-ups and then estimate the Veteran's functional loss due to such flare-ups based on all the evidence of record, including the Veteran's lay information, or explain why he or she cannot not do so. Moreover, with regard to the Veteran's low back disorder, he contends that he has such a disorder that is directly related to his military service. Specifically, at the April 2017 Board hearing, the Veteran stated that his back pain began while he was deployed in Iraq riding on patrols in a mine-resistant ambush protected (MRAP) vehicle. In this regard, the Veteran's service treatment records (STRs) reveal that he complained of low back pain in March 2010 and April 2010. Furthermore, in his April 2010 report of medical assessment, the Veteran noted that he suffered from an injury or illness while on active duty, which he did not seek medical care, as back pain from an improved outer tactical vest (IOTV) and MRAP, and the examiner noted that the Veteran's low back pain was stable and to follow-up with VA. Alternatively, the Veteran alleges that he has a back disorder that is secondary to his service-connected right-knee disability. In October 2010, the Veteran underwent a VA examination in connection with his claim. At such time, the examiner found that he did not have a low back disorder other than pain. However, the Board notes that the Veteran has documented service in Southwest Asia in Iraq during the Persian Gulf War. Therefore, service connection may also be established under 38 C.F.R. § 3.317, which provides that service connection may be warranted for a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021; and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317. For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C § 1117 (d) warrants a presumption of service connection. 38 U.S.C § 1117. Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317 (b). The Board notes that the record reveals that the Veteran has had low back pain that has not been attributed to a known clinical diagnosis. Further, while the October 2010 VA examiner indicated that the Veteran did not have a diagnosable low back disorder other than pain, he did not consider the provisions related to an undiagnosed illness or other qualifying chronic disability. Therefore, a remand is warranted in order to obtain an addendum opinion that addresses such theory of entitlement. Additionally, the Board finds that a remand is necessary to obtain outstanding treatment records. In this regard, at the April 2017 Board hearing, the Veteran testified that x-rays were conducted of his back two months prior and that the clinician found wedging in his lower back. The Veteran also stated that he was going to see his clinician the following month and that he only received treatment from VA. Thus, on remand, the Veteran should be given an opportunity to identify any additional outstanding records and, thereafter, all identified records should be obtained, to include updated VA treatment records. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to his claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include any VA treatment records dated from June 2012 to the present, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After all records have been associated with the file, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected right knee disability. All indicated tests and studies should be undertaken. The record, including a complete copy of this remand, must be made available for review in connection with the examination. If the Veteran fails to report to his scheduled VA examination, a copy of the notification letter advising him of the time, date, and location of the scheduled examination must be included in the record and must reflect that it was sent to his last known address of record. If it was returned as undeliverable, such must be noted in the record. If possible, such examination should be conducted during a flare-up. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran's right knee disability. (B) The examiner should record the range of motion of the right knee observed on clinical evaluation in terms of degrees for flexion and extension. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case he or she should clearly explain why that is so. (C) The examiner is also requested to review the VA examination containing range of motion findings pertinent to the Veteran's right knee disability conducted in October 2010. In this regard, the examiner is requested to offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to do so, he or she should explain why. (D) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran's range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (E) If the Veteran endorses experiencing flare-ups of his right knee, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. If the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (F) The examiner should also comment as to whether (and if so, to what extent, (i.e., slight, moderate, or severe)) the Veteran's right knee disability results in recurrent subluxation or lateral instability. (G) The examiner should also indicate whether there is dislocated or removed semilunar cartilage and, if so, the nature of the symptoms associated with such meniscus impairment. (H) The examiner should indicate whether the Veteran's right knee disability results in any neurological manifestations and, if so, the nerve affected and the severity of such complete or incomplete paralysis. (I) The examiner also should comment upon the functional impairment resulting from the Veteran's right knee disability. A rationale for any opinion offered should be provided. 3. After all records have been associated with the file, return the record to the VA examiner who conducted the October 2010 back examination. The record and a copy of this Remand must be made available to the examiner. The examiner should note in the examination report that the record and the Remand have been reviewed. If the October 2010 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. (A) The examiner should note and detail all reported symptoms referable to the Veteran's low back. (B) The examiner should specifically state whether the Veteran's low back complaints, to include pain, are attributed to a known clinical diagnosis. (C) If any symptoms referable to the low back have not been determined to be associated with a known clinical diagnosis, the examiner should indicate whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that has either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. (D) The examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's low back disorder and/or symptoms represent a "medically unexplained chronic multisymptom illness." Such is defined as a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. (E) For each diagnosed low back disorder, the examiner should render an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorder had its onset in, or is otherwise related to the Veteran's active duty service or period of ACDUTRA, to include his duties of riding on patrols while deployed in Iraq. The examiner must consider and discuss the Veteran's STRs documenting low back pain complaints. (F) For each diagnosed low back disorder, the examiner should render an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorder is caused by OR aggravated by his service-connected right knee disability, to include as a result of change in gait or the favoring of the right knee. For any aggravation found, please state the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In rendering the requested opinions, the examiner should consider and discuss all relevant evidence, to include medical documents, and all lay assertions. A rationale for any opinion offered should be provided. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what additional evidence (if any) would be necessary before an opinion could be rendered. 4. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If such claims remain denied, the Veteran should be issued a supplemental statement of the case. 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 Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). _________________________________________________ A. JAEGER 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).