Citation Nr: 18146600 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-28 024 DATE: October 31, 2018 REMANDED Entitlement to an initial disability rating in excess of 20 percent for right leg tibial neuropathy is remanded. Entitlement to service connection for a lumbar spine disability, as secondary to service-connected status post total right knee replacement surgery with instability, is remanded. Entitlement to service connection for a cervical spine disability, as secondary to service-connected status post total right knee replacement surgery with instability, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1969 to May 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision, which granted service connection for right leg tibial neuropathy and denied service connection for a low back disability and cervical strain. The rating decision assigned a noncompensable disability rating for right leg tibial neuropathy, effective August 14, 2013. Thereafter, a July 2016 rating decision assigned a 20 percent disability for right leg tibial neuropathy, effective August 14, 2013. 1. Entitlement to an initial disability rating in excess of 20 percent for right leg tibial neuropathy is remanded. The Board finds that a VA examination is warranted to assess the current nature and severity of the Veteran’s service-connected right leg tibial neuropathy. The Veteran has not been afforded a VA examination concerning his right leg tibial neuropathy. His disability rating is based on private treatment records. He advised in an April 2018 written statement that his right leg tibial neuropathy is worsening and that he experiences pain when sitting or resting and numbness when walking. Considering that the Veteran has not been afforded a VA examination and the evidence suggesting that his disability picture may have worsened, the Board finds that the current evidence of record does not adequately reveal the present state of the Veteran’s service-connected right leg tibial neuropathy. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant’s disability, a VA examination must be conducted); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) (“Where the record does not adequately reveal the current state of the claimant’s disability…the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination.”); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). 2. Entitlement to service connection for a lumbar spine disability, as secondary to service-connected status post total right knee replacement surgery with instability; and 3. Entitlement to service connection for a cervical spine disability, as secondary to service-connected status post total right knee replacement surgery with instability are remanded. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with a service-connected disability, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence “indicates” that there “may” be a nexus is a low one. McLendon, 20 Vet. App. at 83. The Veteran maintains that his service-connected right knee disability causes an abnormal gait, which in turn resulted in a low back disability and cervical strain. An August 2016 written statement from the Veteran’s private treating physician advised that he has an abnormal gait due to limping as well as the shortening of his lower extremity. The written statement also provided that it is possible that his abnormal gait and shortened lower extremity could have contributed to his spine problems. An October 2006 private treatment record shows the Veteran has some mild loss of disc space height at the C4-5 and C5-6 levels and some small osteophytes. A December 2009 private treatment record lists lumbar degenerative disc disease as a clinical impression for the Veteran. Further, a private treatment records show the Veteran underwent cervical fusion surgery and lumbar laminectomy surgery. Because there is at least an indication that the Veteran’s current low back disability and cervical strain may be related to his service-connected right knee disorder, a VA examination and opinion must be provided to make an informed decision on these claims. McLendon, 20 Vet. App. at 83; see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is not competent to substitute its own opinion for that of a medical expert). In an August 2013 Authorization and Consent to Release Information to the Department of Veterans Affairs (VA) (VA Form 21-4142), the Veteran identified relevant outstanding private treatment records from Overlake Hospital Medical Center. The Veteran provided that he underwent two cervical fusion surgeries and one lumbar laminectomy surgery. While the claims folder contains private treatment records from Overlake Hospital Medical Center, it does not appear all of the Veteran’s records have been obtained. A remand is required to allow VA to obtain authorization and request these records. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any adequately identified physicians and/or facilities, including from Overlake Hospital Medical Center. Make two requests for the authorized records from any adequately identified physicians and/or facilities, including from Overlake Hospital Medical Center, unless it is clear after the first request that a second request would be futile. 2. After the above development is completed, schedule the Veteran for an examination to determine the current severity of his service-connected right leg tibial neuropathy. To the extent possible, the examiner should identify any symptoms and functional impairments due to right leg tibial neuropathy alone and discuss the effect of the Veteran’s right leg tibial neuropathy on any occupational functioning and activities of daily living. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any cervical and lumbar spine disabilities. (a.) Identify all current lumbar and cervical spine disabilities. (b.) The examiner must opine as to whether any current lumbar spine disability is at least as likely as not (50% or greater probability) either (i) proximately due to, or (ii) aggravated beyond its natural progression by the Veteran’s service-connected right knee disorder with instability and/or right leg tibial neuropathy, to include by any altered gait or leg shortening associated with these disorders. (c.) The examiner must opine as to whether any current cervical spine disability is at least as likely as not either (i) proximately due to, or (ii) aggravated beyond its natural progression by the Veteran’s service-connected right knee disorder with instability and/or right leg tibial neuropathy, to include by any altered gait or leg shortening associated with these disorders. • In providing these opinions, the examiner should acknowledge and consider the August 2016 written statement from the Veteran’s private treating physician that advised that the Veteran has an abnormal gait due to limping as well as the shortening of his lower extremity and that it is possible that his abnormal gait and shortened lower extremity could have contributed to his spine problems. (Continued on the next page)   All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mussey, Associate Counsel