Citation Nr: 1805004 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 98-17 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to a rating in excess of 20 percent for lumbar spine degenerative disc disease and lumbosacral spine fibromyositis. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from August 1968 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1997 rating decision of the San Juan, the Commonwealth of Puerto Rico, Regional Office (RO) of the Department of Veterans Affairs (VA) which increased the rating for chronic lumbosacral fibromyositis from 0 to 10 percent, effective March 11, 1997. In March 1998, the RO recharacterized the service-connected lumbosacral spine disability as lumbar spine degenerative disc disease with chronic lumbosacral fibromyositis and assigned a 20 percent rating, effective March 11, 1997; and denied service connection for right and left leg disabilities. In March 2004, the Board remanded the Veteran's claims to the Agency of Original Jurisdiction for additional development of the record. In November 2006, the RO determined that new and material evidence had not been received to reopen claims of entitlement to service connection for right and left leg disabilities. In January 2010, the Board remanded the claim for increased rating for a lumbosacral spine disability for additional development. In January 2011, the Board denied an increased rating for the service-connected lumbosacral spine disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In August 2011, the United States Court of Appeals for Veterans Claims granted the Parties' Joint Motion for Remand; vacated the Board's January 2011 decision; and remanded the claim for additional development of the record. In February 2012, the Board determined that new and material evidence had been received to reopen claims of entitlement to service connection for right and left leg disabilities and remanded those issues and the claim for increased rating for a lumbosacral spine disability for additional development of the record. The claim for increased rating for a lumbosacral spine disability is remanded to the Agency of Original Jurisdiction. FINDINGS OF FACT 1. Service connection is currently in effect for lumbar spine degenerative disc disease with chronic lumbosacral fibromyositis and cervical strain. 2. It is at least as likely as not that a right knee meniscal tear and osteoarthritis have been aggravated by the service-connected lumbosacral spine disabilities. 3. It is at least as likely as not that a left knee meniscal tear and osteoarthritis have been aggravated by the service-connected lumbosacral spine disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for aggravation of a right knee meniscal tear and osteoarthritis are met. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.310(a), 3.326(a) (2017). 2. The criteria for service connection for aggravation of a left knee meniscal tear and osteoarthritis are met. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.310(a), 3.326(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts that service connection for right and left knee disabilities is warranted as the claimed disabilities have been found by his private physicians to have been aggravated by a service-connected lumbosacral disability. Service connection may be granted for a disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disability has aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection is currently in effect for lumbar spine degenerative disc disease with lumbosacral spine fibromyositis and cervical strain. The Veteran's service medical records do not refer to any knee or other lower extremity disability. An August 2010 written statement from N. Ortiz-Valentin, M.D., states that the Veteran developed bilateral knee problems and "weight bearing problems which has caused bad posture loss of correct alignment and loss of curvature of cervical, thoracic, and lumbar lordosis putting more stress in one side of vertebras than the other." The doctor concluded that "it is more probable than not that his neck and knee problems [and] his radiculopathy are service connected secondary to his back problem that resulted from his duties while at service." The report of a July 2012 VA lower extremity examination states that the Veteran was diagnosed with right knee and left knee medial meniscal tears and bilateral knee osteoarthritis. The examiner opined that "the Veteran's right and left knee conditions are less likely as not aggravated by his service-connected lumbosacral disability" as "no lumbar biomechanical abnormality is identified during today's physical examination evaluation, gait analysis (or in the review of his medical record), neurological evaluation of the lower back, which could result in abnormal stress factors generating from the lumbar spine and acting directly or indirectly on the knees." The VA physician did not note or otherwise address Dr. Ortiz-Valentin's August 2010 positive opinion as to the relationship between the service-connected lumbosacral disabilities and the diagnosed right knee and left knee disabilities. Absent such discussion, the Board finds that the July 2012 VA examination report is incomplete, and of limited probative value. The report of a November 2014 VA lower extremity examination states that the Veteran was diagnosed with right and left knee medial meniscal tears and bilateral knee osteoarthritis. The examiner commented that "the Veteran's right and left knee conditions are less likely as not secondary to his lumbosacral disability" as "no biomechanical abnormality at gait was found as evidence of abnormal stress force causing increase joint stress to both knees caused by the lumbar condition." The VA physician did not note or otherwise address Dr. Ortiz-Valentin's August 2010 opinion as to the relationship between the service-connected lumbosacral disabilities and the diagnosed right knee and left knee disabilities. Absent such discussion, the Board finds that the November 2014 examination report is incomplete and of limited probative value. An August 2017 written statement from A. Ali, M.D., states that she had reviewed the Veteran's records. The doctor commented that "because of his continued issues with his lumbar spine, [the Veteran] required biomechanical compensation placing excess stress upon his knees." She concluded that "it is my medical opinion that it is more likely than not that the Veteran's bilateral leg disability is caused by his service-connected lumbar disc disease." The Board finds that the evidence is in at least equipoise as to whether the diagnosed right knee and left knee meniscal tears and bilateral knee osteoarthritis were aggravated by the service-connected lumbosacral spine disabilities. Drs. Ortiz-Valentin and Ali both concluded that the diagnosed right knee and left knee medial meniscal tears and osteoarthritis were aggravated by the service-connected lumbosacral spine disabilities. The relevant VA examination reports of record are incomplete for rating purposes. Therefore, resolving reasonable doubt in the Veteran's favor, the Board concludes that service connection is warranted for the aggravation of right and left knee medial meniscal tears with osteoarthritis. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to service connection for the aggravation of a right knee medial meniscal tear with osteoarthritis is granted. Entitlement to service connection for the aggravation of a left knee medial meniscal tear with osteoarthritis is granted. REMAND A July 2012 VA spine examination report shows that the Veteran was both diagnosed with "lumbar spine discogenic disease with bulging disc at L3/L4 level" and found not have intervertebral disc syndrome. The examiner made no findings as to any incapacitating episodes associated with any lumbar spine degenerative disc disease. A November 2014 VA spine examination report show that the Veteran was both diagnosed with "L3-L4 bulging disc and degenerative joint disease by CT scan" and found not have intervertebral disc syndrome. The examiner made no findings as to any incapacitating episodes associated with the lumbar spine degenerative disc disease. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). When VA obtain an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Because of the conflicting examination findings as to the diagnosis of degenerative disc disease and the lack of findings as to any incapacitating episodes associated with the lumbosacral spine disability, the Board finds that further VA spine examination is necessary. Clinical documentation dated after July 2014 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to all treatment of the service-connected lumbosacral spine disabilities since July 2017, including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, contact all identified health care providers and request copies of all available records pertaining to treatment of the Veteran, not already of record. If identified records are not obtained, then notify the Veteran. 38 C.F.R. § 3.159(e) (2017). 2. Associate with the record any VA medical records not already of record of treatment of the Veteran, including that provided after July 2017. 3. Schedule the Veteran for a VA spine examination to assist in determining the current severity of the service-connected lumbosacral spine disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Provide ranges of motion for passive and active motion of the lumbosacral spine. The examiner should state whether there is any additional loss of lumbosacral spine function due to painful motion, weakened motion, excess motion, fatigability, or incoordination. (b) Indicate whether, and to what extent, the Veteran experiences functional loss of the spine due to pain or any other symptoms during flare-ups or with repeated use. (c) Note any incapacitating episodes associated with the lumbosacral spine disabilities, and their frequency and duration. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. (d) State whether or not there is any ankylosis of the spine or any segment of the spine. (e) State whether there is any neurologic pathology due to the lumbosacral spine disability. If so, describe the neurologic disability, the nerves affected, and the level of impairment. (f) Specifically address the impact of the lumbosacral spine disabilities on the Veteran's vocational pursuits. 4. Then readjudicate the claim on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then return the case to the Board. 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 the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs