Citation Nr: 1802719 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 07-29 809 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for fibromyalgia. 3. Entitlement to an effective date prior to December 18, 2001, for the grant of service connection for a right knee disability, to include on the basis of clear and unmistakable error (CUE). 4. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from October 1975 to October 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The appeal for entitlement to an effective date prior to December 18, 2001, for the grant of service connection for a right knee disability was previously before the Board in April 2011, when it was remanded for additional development. It was returned to the Board but remanded again in January 2014. The requested development has now been completed, and the appeal has been returned to the Board. The April 2011 Board decision denied a claim for an earlier effective date for service connection for a left knee disability, and the January 2014 Board decision denied claims for increased ratings for the right and the left knee disabilities. Those matters are no longer before the Board. The January 2014 Board decision referred the Veteran's claims for entitlement to service connection for a back disability and fibromyalgia to the RO for initial consideration. After these claims were denied by the RO, the Veteran initiated an appeal of both. The appeals have been completed, and these issues have been certified to the Board for consideration. The January 2014 Board decision also referred a claim for TDIU to the RO for initial consideration. In July 2014 the United States Court of Appeals for Veterans Claims (Court) noted that the Board had jurisdiction of the TDIU claim under Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), granted a Joint Motion to Modify the Board Decision, and changed the referral of TDIU into a remand of a claim for TDIU to the RO for initial consideration. The initial consideration has been completed, and the matter has been returned to the Board. The issues of entitlement to service connection for a back disability and fibromyalgia are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A claim seeking service connection for a right knee disability was received by VA on December 21, 1976. 2. A February 23, 1977 rating decision denied service connection for a right knee disability. 3. The February 23, 1977 rating decision, to the extent it did not grant entitlement to service connection for a right knee disability, was not based on the law and evidence then of record, and did not constitute a reasonable exercise of rating judgment. 4. The December 21, 1976 claim was received by VA within one year of the Veteran's October 13, 1976 separation from active service. 5. As of July 11, 2015, the Veteran's service-connected disabilities include right knee strain, with X-ray evidence of mild degenerative changes, evaluated as 30 percent disabling; left knee strain associated with right knee strain, evaluated as 30 percent disabling; limitation of extension of the right knee, evaluated as zero percent disabling; and limitation of extension of the left knee, evaluated as zero disabling. His combined evaluation of 60 percent from July 11, 2015 is solely the result of disabilities of both lower extremities. 6. It is as likely as not that the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities from July 11, 2015. 7. The Veteran did not meet the criteria for consideration of TDIU on a scheduler basis prior to July 11, 2015; the evidence does not show he was been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities during this period, and forwarding the matter to the Director, Compensation service for extraschedular consideration was not required. CONCLUSIONS OF LAW 1. Clear and unmistakable error is shown in the February 23, 1977 rating decision to the extent it did not grant service connection for a right knee disability. 38 U.S.C. §§ 310, 311 (1976); 38 C.F.R. 3.303 (1976); 38 U.S.C. § 7105 (2014); 38 C.F.R. § 3.105 (2017). 2. The criteria for an effective date of October 14, 1976, but no earlier, for the grant of service connection for a right knee disability are met. 38 C.F.R. §§ 3.102, 3.303, 3.400 (2017). 3. The criteria for TDIU have been met from July 11, 2015. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). 4. The criteria for TDIU prior to July 11, 2015 have not been met. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. As the Board is granting the claim for an earlier effective date for a right knee disability, this claim is substantiated and there are no further actions necessary on the part of VA to notify or assist with respect to this claim. Wensch v. Principi, 15 Vet. App. 362, 367- 68 (2001); see also 38 U.S.C. § 5103A(a)(2) (stating that the Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). As for the TDIU claim, this was a component of the appeals of the original awards of service connection for the Veteran's knee disabilities. See Dingess v. Nicholson, 19 Vet. App. 473, 490-91 (2006). Regarding the duty to assist, the Veteran was afforded a VA examination of his service connected knee disabilities in July 2015, and the examiner included an opinion that addressed the effects of his disabilities on his employment. All VA treatment records have been obtained, as have any private records that have been identified. Records have also been obtained from the Social Security Administration (SSA). There is no indication of any other outstanding relevant evidence, and the Board will proceed with consideration of the Veteran's appeal. Earlier Effective Date/CUE Entitlement to service connection for a right knee disability was granted in a November 2006 rating decision. An effective date of December 18, 2001 was assigned. The Veteran submitted a timely notice of disagreement with the effective date assigned by this rating decision, and the current appeal was initiated. The Veteran contends that he is entitled to an effective date prior to December 18, 2001. He believes that the February 23, 1977 rating decision that initially denied service connection for his right knee disability contains CUE, and that therefore the effective date of service connection should be from the date of his discharge, as the December 20, 1976 original claim was received within a year of separation from service. The Veteran notes that his entrance examination found his right knee to be normal. He believes this means the right knee disability that existed prior to service had resolved, and that the right knee symptoms that were treated in service represent a new disability. In the alternative, he believes that any pre-existing right knee disability was aggravated during service. In general, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The Veteran's original claim for service connection for a right knee disability was received on December 21, 1976, which was within one year of discharge from service. 12/21/76 VA 21-526 Veterans Application for Compensation or Pension. In a rating decision dated February 23, 1977, the claim for entitlement to service connection for a right knee disability was denied. The Veteran was informed of this decision in a March 9, 1977 letter which also provided him with his appellate rights. He did not submit a notice of disagreement with this decision, but he did submit a new VA Form 21-526, Veteran's Application for Compensation or Pension in May 1977. The previous decision was confirmed in a May 1977 rating decision, and the Veteran was notified in June 1977. At no point did the Veteran submit a notice of disagreement with or otherwise express intent to appeal the February 23, 1977 decision. The June 1977 letter informed him that he should submit new and material evidence to reopen his decision, but he did not. Therefore, the February 23, 1977 rating decision is final, and is not subject to revision on the same factual basis. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.105(a), 3.156(b), 20.200 (2017). Once a rating decision is final, they may not be revised except on the basis of clear and unmistakable error. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.105(a). The Veteran contends that the February 23, 1977 rating decision contains CUE, that his original claim should have been granted, and that this would provide for an earlier effective date. CUE is a very specific and rare kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (citing Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)). The clear and unmistakable evidence standard is an "onerous" one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) To establish CUE the moving party must show that: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e. more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied, (2) the error must be "undebatable" and of the sort "which had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting in part Russell v. Principi, 3 Vet. App. 310 (1992)). The laws and regulations that govern the award of service connection are basically unchanged since February 1977. Then, as now, the laws and regulations state that service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 310 (1976); 38 C.F.R. § 3.303 (1976). The law also stated that a veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 311 (1976). See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The evidence available in February 1977 consisted of the Veteran's service treatment records, as discussed in the February 1977 rating decision. See 02/01/1977 VA 21-3101. The October 1975 Report of Medical Examination obtained upon entrance into service shows that the Veteran's lower extremities were determined to be normal. A right knee disability was not noted. The Veteran also denied a history of lameness; bone, joint, or other deformity; arthritis; and a "trick" or locked knee on a Report of Medical History he completed at that time. Subsequently, the Veteran was seen for complaints of right knee pain in June 1976. He was said to have about a three or four year history of right knee pain since involvement in a martial arts program. There was pain on walking downstairs, or after stress or strain to the knee. On examination, there was much grating of the patella, but no apparent ligament damage. The impression was possible chondromalacia. July 1976 records state that the Veteran had complained of right knee pain following physical training for about a year. He reported that his knee pain existed prior to service since injuring his knee in karate practice in high school. Additional July 1976 records indicate the pain had worsened, and the Veteran was referred for a Medical Evaluation Board. In September 1976, the Veteran underwent a physical examination in conjunction with a Medical Board evaluation. He reportedly had a history of a contusion to the right knee while practicing martial arts about three or four years ago. Since that time, he had noted retropatellar right knee discomfort with any strenuous activity. The Veteran did not seek medical consultation concerning his knee before entering service. A review of record and an interview with the Veteran failed to reveal any evidence of an injury to the knee on active duty. An X-ray study of the knee was normal. Following examination, the diagnosis was chondromalacia. The Medical Board concluded that the Veteran was unfit for full duty due to his right knee disability. It added the disability clearly existed prior to service and was symptomatic at that time. It was further concluded that the level of symptoms had not materially changed since entering service, and there was no documented evidence of significant injury to the knee in service. Therefore, the Medical Board concluded that the Veteran's disability could not reasonably be considered to have been aggravated by service. The evidence considered by the February 23, 1977 rating decision consisted entirely of the Veteran's service treatment records. The decision noted that the Veteran was treated for pain in the right knee during service, and that his case was referred to a Medical Board for evaluation. The Medical Board determined that the Veteran's condition existed prior to enlistment, as he admitted sustaining an injury to the right knee practicing martial arts in high school three to four years earlier. There had been no additional injury during service. The rating decision then basically adopted the language of the Medical Board. The decision found that the right knee disability clearly existed and was symptomatic prior to entry into service. The decision also found that the level of symptoms did not materially change since entering service and there was no documented evidence of significant injury since entering service. Therefore, his right knee disability could not reasonably be considered to have been aggravated in service. Service connection was denied on this basis. The Board finds that the February 23, 1977 rating decision contains clear and unmistakable error. At this juncture, the Board notes that while the relevant case law is dated subsequent to the February 1977 rating decision, the wording of the relevant portions of the applicable laws are unchanged at the time of the Court's decisions. Therefore, the Court's interpretation of these laws demonstrates how these laws should have been properly applied. Wagner, 370 F.3d at 1094-96 (covering the legislative history of now section 1111 and describing how it has had the same meaning for many years). The Veteran's October 1975 entrance examination failed to note the existence of a right knee disability. When no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. 38 U.S.C. § 311 (1976); see Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). If the presumption of soundness applies, the burden then shifts to the Government to rebut the presumption by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. As further explained in Horn v. Shinseki: Once the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness . . . the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. 25 Vet. App. 231, 235 (2012). "The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition." Quirin v. Shinseki, 22 Vet. App. 390, 397(2009) (citing Wagner, 370 F.3d at 1096). This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. See Horn, 25 Vet. App. at 235. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Id. In this case, the February 1977 rating decision determined that the right knee disability clearly existed prior to entering service. The Board concludes that the decision applied the correct standard in determining that the Veteran's right knee disability pre-existed his examining for, acceptance by, and enrollment into active service. However, the rating decision then utilized the language of the inservice Medical Board to find that the Veteran's symptoms did not "materially" change; that there was no evidence of "significant" injury in service; and that the right knee disability could not "reasonably" be considered to have been aggravated in service. In essence, the February 1977 rating decision determined that the record contained insufficient evidence of aggravation. This was not a correct application of the 38 U.S.C. § 311 (1976), as affirmative evidence that was clear and unmistakable was required to show that the right knee disability was not aggravated during service. In fact, there was no such affirmative evidence, and the failure to use the correct legal standard led directly to the denial of the Veteran's claim. But for the RO's incorrect application of the presumption of soundness, and the resulting failure to apply the higher clear and unmistakable evidence standard to rebut a presumption of soundness of the knee at service entrance, the outcome of the February 23, 1977 rating decision would have been manifestly different; that is, service connection for a right knee disability would have been granted because the question would have become one of service incurrence rather than service aggravation. The Board notes that the evidence shows that the pre-existing right knee disorder manifested in service. See June and July 1976 STRs (noting right knee pain, to include walking down stairs or after stress/strain, and worsening pain); Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2012) ("before the presumption of soundness is for application, there must be evidence that a disease or injury that was not noted upon entry to service manifested or was incurred in service"). Accordingly, the Board finds that the February 23, 1977 rating decision that denied entitlement to a right knee disability was clearly and unmistakable erroneous, and that service connection for the right knee should have been granted at that time. Unless otherwise specifically provided in Chapter 51 of Title 38 of the United States Code, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a) (2012). Title 38 of the Code of Federal Regulations clarifies that an award of direct service connection will be effective on the day following separation from active military service or the date on which entitlement arose if the claim is received within one year of separation from service. Otherwise, the effective date shall be the date of receipt of the appellant's claim or the date on which entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). When CUE has been found, the effective date will be the date from which benefits would have been payable if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.400(k). In the instant decision, the Board finds that it was CUE for the RO to deny the Veteran's claim for service connection for a right knee disability in the February 23, 1977 rating decision. The claim was received by VA on December 21, 1976, within one year of the Veteran's October 13, 1976 separation from active service. As such, the appropriate effective date for the award of service connection for a right knee disability is October 14, 1976, the day after the Veteran separated from service. Id. TDIU The Veteran contends that his service-connected disabilities prevent him from obtaining or maintaining gainful employment. TDIU may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In this case, the Veteran's service connected disabilities include right knee strain, with X-ray evidence of mild degenerative changes, evaluated as 30 percent from July 11, 2015; left knee strain associated with right knee strain, evaluated as 30 percent from July 11, 2015; limitation of extension of the right knee, evaluated as zero percent from July 11, 2015; and limitation of extension of the left knee, evaluated as zero percent from July 11, 2015. His combined evaluation was 60 percent from July 11, 2015. Although the Veteran does not have a single disability ratable at 60 percent, disabilities of both lower extremities may be considered as one disability. The disabilities of the right knee and the left knee that combine to 60 percent with application of the bilateral factor are considered to be a single disability. As such, the threshold percentage requirements for TDIU as set forth under 38 C.F.R. § 4.16(a) have been met. The remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities during this period. See 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not warrant assignment of a TDIU alone as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. See Van Hoose, 4 Vet. App. at 363. Thus, the central question is "whether the [V]eteran's service connected disabilities alone are of sufficient severity to produce unemployability," and not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Entitlement to TDIU is based on an individual's particular circumstance. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Consideration may be given to a veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363. The record includes a July 11, 2015 VA fee basis examination of the knees. The Veteran's symptoms included severe pain that radiated to the lower extremities and would affect his ability to sleep. He was not able to walk independently, stand for more than five minutes, or walk for more than a few feet before his knees would give out. He was not employed and was considered disabled. At the conclusion of the examination, the examiner opined that due to the Veteran's knee strain and degenerative arthritis, his ability to perform any type of occupational task was impacted. He was currently a fall risk. As a result of his pain medication for his knees, he was not able to drive or perform any task that requires walking, standing, or full attention. 7/11/15, C&P Exam, pp. 4, 15. The Board finds that as of July 11, 2015, entitlement to TDIU is demonstrated. The record shows that the Veteran has been unemployed since approximately 2001, and that his former occupation was an electrician. He did not meet the scheduler criteria for TDIU until July 11, 2015. On that date, the VA examiner opined that the Veteran was not able to drive or perform any task that requires walking, standing, or full attention. The Board observes that this would seemingly preclude him from employment as an electrician, which is the only position for which he has been trained and employed. Based on the Veteran's training, eduction, and impairment from his service-connected disabilities, the Board finds that he is unable to secure or follow a substantially gainful occupation. There is no medical opinion to the contrary dated on or about July 11, 2015, and no opinion to the contrary since that date. When all doubt is resolved in favor of the Veteran, the Board finds that his service connected disabilities preclude gainful employment, and the criteria for TDIU have been met. 38 U.S.C. § 5107(b). The Board also finds that entitlement to TDIU prior to July 11, 2015 has not been shown. Prior to July 11, 2015, the Veteran's combined evaluations for his service connected disabilities were 40 percent from May 10, 2011, and 20 percent prior to that date. Therefore, the threshold percentage requirements for TDIU as set forth under 38 C.F.R. § 4.16(a) were not met. This precludes an award of TDIU on a scheduler basis. However, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. All cases of veterans who are unemployable by reason of service connected disabilities but who fail to meet the scheduler criteria must be forwarded to the Director, Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b) (2017). The Board is unable grant TDIU on an extraschedular basis in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). A January 2016 supplemental statement of the case shows that the RO considered forwarding the Veteran's claim to the Director for extraschedular consideration, but found that the criteria for such consideration were not met. The Board will also find that forwarding the Veteran's claim for TDIU to the Director for extraschedular consideration is not required in this case. The evidence does not show that the Veteran's service-connected disabilities precluded him from substantially gainful employment prior to July 11, 2015. The record shows that the Veteran was employed as an electrician until 2001. A copy of the SSA decision that granted the Veteran disability benefits is included in the record, but this decision does not list the Veteran's service-connected knee disabilities as contributing to his impairment. Instead, only nonservice connected disabilities were listed. See January 2003 SSA decision (listing chronic neck and back pain syndrome, degenerative disc disease of the lumbosacral spine with stenosis, fibromyalgia, chronic obstructive pulmonary disease, asthma, and affective disorders as considered "severe" under the Social Security Act). There are no records dated prior to July 11, 2015 that indicate the Veteran would have been precluded from gainful employment due to his service-connected disabilities. Therefore, as the evidence weighs against a finding that the Veteran's service-connected knee disabilities rendered him unemployable before July 11, 2015, the RO was not required to forward the Veteran's claim to the Director for extraschedular consideration. ORDER An effective date of October 14, 1976 for the award of service connection for a right knee disability based upon clear and unmistakable error is granted. A total rating based on individual unemployability due to service connected disabilities as of July 11, 2015 is granted. A total rating based on individual unemployability due to service connected disabilities prior to July 11, 2015 is denied. REMAND The Veteran contends that his current back disability either developed due to service or secondary to his service-connected knee disabilities. He offers the same contentions for his fibromyalgia. Establishing service connection on a secondary basis essentially requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. §§ 3.303, 3.310 (2017). Secondary service connection may be established for a nonservice-connected disability which is aggravated by a service connected disability. In this instance, the veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). The record contains several medical opinions that address the etiology of the Veteran's back disability. For the following reasons, none of these are adequate to permit adjudication. The initial evidence of a low back disability is found in a December 2000 private examination, where the Veteran attributed his back pain and fibromyalgia to a November 2000 industrial accident when he tripped and fell at work. 1/4/01 Medical Treatment Records - Furnished by SSA, p. 67. The Veteran continued to attribute his back pain to this fall as late as a June 2002 private examination. 1/4/01 Medical Treatment Records - Furnished by SSA, p. 59. A December 2000 VA treatment record shows that the Veteran appeared at the facility in order to establish medical care. He had fibromyalgia and arthritis, and he had experienced low back pain since an injury at work three weeks earlier. 8/23/2010 Medical Treatment Record - Government Facility, p. 41. A November 2009 private medical record shows that the Veteran reported back pain since being involved in a motor vehicle accident earlier that day. 5/31/11 Medical Treatment Record - Non-Government Facility, p. 3. A January 2010 opinion from a VA doctor (Dr. H.) written on a prescription form says he believes it likely that the Veteran's low back pain was due to the gait from his knee injuries. The doctor does not provide any rationale, address the baseline severity of the back, or note the occurrence of the November 2000 or November 2009 injuries. 2/25/10 Medical Treatment Record - Government Facility, p. 1. A February 2010 opinion from a private chiropractor (Dr. J.K.) opined that the Veteran's back disability was due to an altered gait pattern that was the result of his service connected knee disabilities. He further opined that the Veteran's fibromyalgia was due to the back disability. Again, the previous two injuries were not acknowledged. 4/30/10 Medical Treatment Record - Non-Government Facility, p. 1. Similarly, a June 2010 private medical opinion (W.K.) states it is more likely than not that the Veteran's back pain was aggravated by his knee injuries. This opinion does not discuss either the November 2000 or November 2009 injuries, contain any rationale or address the baseline severity of the back prior to aggravation. 2/15/10 Third Party Correspondence, p. 2. Finally, the Veteran was afforded a VA fee basis back examination in August 2010. On this occasion, the examiner opined that the Veteran's back condition was not secondary to the Veteran's bilateral knee conditions. The rationale was that there was no published literature with Level 1 or Level 2 evidence documenting an association between lower back conditions and bilateral knee conditions. Unfortunately, the January 2010, February 2010, and June 2010 opinions were not discussed or even acknowledged by this examiner. 8/19/2010 VA Examination, pp. 1, 10. The Board finds that the all opinion of record are not adequate to decide the back issue and finds that a VA examination and opinion is necessary to assess the etiology of his back disorder. There is no indication that the Veteran has ever been provided a VA examination specifically for his fibromyalgia. The Board finds that the Veteran should be afforded a new VA examination in order to ascertain the current nature and etiology of his back disability and fibromyalgia, and to fully consider and address the Veteran's medical history and the previous medical opinions. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination of his low back and fibromyalgia. All indicated tests and studies should be conducted. The claims file should be provided to the examiner, and the examination report must reflect that it has been reviewed. In particular, the examiner's attention is directed to the evidence pertaining to the November 2000 work injury to the low back, the November 2009 motor vehicle accident, and the January 2010, February 2010, June 2010, and August 2010 medical opinions. At the completion of the examination and record review, the examiner should provide the following opinions: a) Is it as likely as not that the Veteran's low back disability was incurred due to injury or illness during active service? b) If the answer to (a) is negative, is it as likely as not that the Veteran's low back disability is (1) proximately due to or (2) aggravated (increased in severity beyond natural progression) by one or both of the Veteran's service-connected knee disabilities? If the answer is positive, is it possible to identify a baseline in severity of the low back disability prior to aggravation? If so, describe that baseline. c) Is it as likely as not that the Veteran's fibromyalgia was incurred due to injury or illness during active service? d) If the answer to (c) is negative, is it as likely as not that the Veteran's fibromyalgia was (1) proximately due to or (2) aggravated (increased in severity beyond natural progression) by one or both of the Veteran's service connected knee disabilities, or by his back disability if the answer to either (a) or (b) is positive? If the answer is positive, is it possible to identify a baseline in severity of the fibromyalgia prior to aggravation? If so, describe that baseline. A comprehensive rationale for all opinions should be provided. If the examiner is unable to provide an opinion without resorting to speculation, the examiner should state whether the inability is due to the limits of the examiner's knowledge, the limits of medical knowledge in general, or there is additional evidence that, if obtained, would permit the opinion to be provided. 2. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order. 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). 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). ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs