Citation Nr: 1804312 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 03-02 401 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for degenerative joint disease (DJD) of multiple joints. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Norah Patrick, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1973 to November 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 1999 and August 2000 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran filed a notice of disagreement (NOD) for the rating decision in October 2000. A statement of the case (SOC) was issued in December 2001 and the Veteran perfected his appeal in January 2003. The matters on appeal were subsequently transferred to the RO in Atlanta, Georgia, and then to the RO in Muskogee, Oklahoma. In April 2003, the Veteran presented testimony at a hearing conducted at the Atlanta RO before a Decision Review Officer. In January 2005, the Veteran presented testimony at a personal hearing conducted at the Atlanta RO before a Veterans Law Judge who is no longer employed by the Board. A transcript of the hearing is associated with the claims file. In November 2017, the Veteran informed VA that he does want another hearing before the Board, notwithstanding the fact that the Veterans Law Judge before whom he testified is no longer employed by the Board. The Board remanded the claims in May 2005 and April 2010. In a December 2012 decision, the Board, in pertinent part, reopened the previously denied claims for entitlement to service connection for a back disability and DJD of multiple joints, and remanded the reopened claims and other claims on appeal for further development. In October 2016, the Board again remanded the claims of entitlement to service connection for a back disability, entitlement to service connection for DJD of multiple joints, and entitlement to service connection for an acquired psychiatric disorder for further development. The claim of entitlement to service connection for an acquired psychiatric disorder was granted in an August 2017 rating decision, and is therefore no longer before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional development is necessary prior to the adjudication of the Veteran's claim for service connection for a back disability and DJD. Back Disability The Veteran contends that he injured his back in service and that his current back disability is related to the in-service injury. The Veteran's November 1972 entrance examination report is negative for any indication of a back disability. However, on the November 1972 report of medical history, the Veteran reported a history of recurrent back pain. Service treatment records (STR) show that the Veteran was treated for of low back pain starting in April 1973 and continuing through June 1974. In November 1973, the Veteran reported his recent episodes of back pain starting after P.T. and a mile-long run. The Veteran is presumed sound when he entered into service as his entrance examination is negative for a back disability. The February 2016 VA examiner said that it was less likely than not that his back condition was caused or aggravated beyond its normal progression by his military service. "Less likely than not" does not meet the required evidentiary standard to rebut the presumption of soundness. In the October 2016 Board decision, the Board found the February 2016 VA medical examination inadequate due to the fact that the examiner did not provide an opinion as to whether any currently diagnosed back disorder was related to the Veteran's active service. The Veteran was afforded new VA cervical and lumbar spine examinations in June 2017. In the medical opinions, the examiner determined that the claimed lumbar and cervical disabilities were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In reaching this determination regarding the lumbar spine, the examiner explained that there is no history of back pain during the last 43 years, no history of pain medication for the back, no history of surgeries, procedures or injections for the back condition. For the cervical spine, the examiner stated that there were no medical records that show the claimant was seen for complaints of neck pain or any related condition. Although the VA examiner determined that the Veteran had no history of back pain or neck during the last 43 years, VA and private treatment records indicate that the Veteran has reported back pain on numerous occasions since 1986. June 1996 VA Medical Center x-rays indicate spondylosis and degenerative disc disease of the lumbar and cervical spine. A January 2002 VA Medical Center x-ray also showed degenerative changes of the lumbar spine. In light of the objective findings that contradict the June 2017 examination report and rationale, a new examination is needed. Degenerative Joint Disease The Veteran contends that he was first diagnosed with DJD in service and that his symptoms have progressively worsened since then. The Veteran's November 1972 entrance examination report is negative for any indication of a joint disability. STRs indicate that in March 1974 the Veteran was treated for swollen joints in the right hand. The assessment was "rule out degenerative disease." In August 1974, the Veteran complained of left knee problems, though his physical examination was normal. The Veteran was afforded a VA examination in February 2016. However, the 2016 Board decision found the medical examination inadequate. The examiner did not specifically include any findings related to the Veteran's DJD, and the opinion provided addressed only whether DJD could be related to the Veteran's claimed in-service exposure to chemical agents, and did not provide an opinion as to whether any current DJD was related to the Veteran's in-service complaints. The Veteran was afforded a new VA examination in June 2017. The June 2017 examiner evaluated the Veteran's hip, ankles, and knees. In the medical opinions, the examiner determined that the claimed DJD of multiple joints were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The in reaching this determination, the examiner stated that there was no medical records that show the claimant was seen for complaints of hip pain and knee pain since service, and no complaints of ankle pain until 2008. However, VA and private medical records indicate treatment for various joint problems since 1986. In November 1986 the Veteran was treated for knee pain. In October 1993, the Veteran was treated for shoulder stiffness and pain. In March 1996, a private provider diagnosed the Veteran with degenerative joint process of the Veteran's right gleno-humeral joint and a degenerative meniscal cyst of the lateral meniscus of the left knee. December 2001 VA records reveal an impression of "multiple joint pains, most likely arthritis." Private treating records from April 2008 indicate that the Veteran was diagnosed with osteoarthritis. In light of the objective findings that contradict the June 2017 examination report and rationale, a new examination is needed. Accordingly, the case is REMANDED for the following action: 1. Ensure that the Veteran is scheduled for a VA examination, with an examiner other than the one who provided the June 2017 medical opinion, for the purpose of ascertaining the nature and etiology of his back disorder. The examiner must review the claims file in conjunction with the examination and provide a complete rationale to support any opinion provided. The examiner is requested to provide the following: Is it as least as likely or not (a 50 percent probability or greater) that the Veteran's current back disability is related to the back condition the Veteran was treated for during service? In answering this question, the examiner must address the Veteran's assertions that he has experienced ongoing symptoms in his back since service, and must set forth the medical reasons for accepting or rejecting the Veteran's statements regarding continuous symptoms since military service. 2. Ensure that the Veteran is scheduled for a VA examination, with an examiner other than the one who provided the June 2017 medical opinion, for the purpose of ascertaining the nature and etiology of his DJD. The examiner must review the claims file in conjunction with the examination and provide a complete rationale to support any opinion provided. The examiner is requested to provide the following: (a) Identify each joint for which Veteran has DJD or arthritis. (b) For each joint identified, is it at least as likely as not (a 50 percent probability or greater) that the Veteran's DJD is related to his active service or to the joint conditions that the Veteran was treated for during service? In answering this question, the examiner must address the Veteran's assertions that he has experienced ongoing symptoms of joint pain since service, and must set forth the medical reasons for accepting or rejecting the Veteran's statements regarding continuous symptoms since military service. 3. After completing the above action the claims must be readjudicated. If any benefit sought remains denied, a SSOC must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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 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). _________________________________________________ JAMES G. REINHART 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).