Citation Nr: 18149568 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 14-17 512 DATE: November 9, 2018 REMANDED Entitlement to an increased rating for degenerative joint disease of the left knee is remanded. Entitlement to an increased rating for degenerative joint disease of the right knee is remanded. Entitlement to service connection for cervical spine condition is remanded. Entitlement to service connection for lumbar spine condition is remanded. REASONS FOR REMAND The Veteran served on active duty from January 27, 2003 to January 21, 2005 and from January 15, 2006 to January 2, 2011, with additional time served in a reserve unit. He had periods of reserve service that included (but are not necessarily limited to) from September 1981 to December 1981, from February 1984 to August 1984, from October 1985 to March 1986, and from October 1989 to March 1990. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Board notes that jurisdiction now rests with the Winston-Salem, North Carolina RO. Regrettably, these matters are REMANDED to the Agency of Original Jurisdiction (AOJ). 1. Entitlement to an increased rating for degenerative joint disease of the left knee and right knee is remanded. As an initial matter, the Board notes that the Veteran was denied claims for increased ratings for his service-connected degenerative joint disease of the left and right knees in an October 2011 rating decision. In November 2011, the Veteran submitted a notice of disagreement (NOD) indicating that he disagreed with the denial of these claims. Subsequently, the RO granted the Veteran respective 10 percent ratings for degenerative joint disease of his left and right knees in January 2013, but did not grant the maximum available benefit. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran has not been afforded a statement of the case (SOC) addressing these issues. Therefore, these claims must now be remanded to allow the RO to provide the Veteran with an appropriate SOC on these issues. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). These issues will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). 2. Entitlement to service connection for cervical spine condition is remanded. The Veteran asserts that he incurred a cervical spine injury that was either caused by or aggravated by his military service as he alleges that his job in the military required significant bending, lifting, twisting, and turning. As stated above, the Veteran served in both an active duty capacity and in the Army Reserves. The Board notes that active service includes, in pertinent part, active duty well as any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101; 38 C.F.R. § 3.6. The RO, in denying the Veteran’s claim, relied on a January 2013 VA examiner’s opinion that the Veteran’s cervical spine condition was not aggravated beyond a natural progression by his military service. That examiner supported this opinion by noting that the Veteran had a 2001 MRI which showed a disease indicating a chronic preexisting condition, and that the Veteran had been able to obtain excellent promotional qualifications. However, the Veteran’s DD 214s indicate that his Reserve service began in the 1980s so it is possible that the Veteran’s “chronic preexisting condition” was in fact incurred during a period of active duty, ACDUTRA, or INACDUTRA prior to his 2001 MRI. On remand, the RO should verify the Veteran’s complete ACDUTRA and INACDUTRA dates, to include obtaining pay records from the Defense Finance Service (DFAS) if necessary. A remand for a VA medical examination is also necessary as the RO dictated that the January 2013 examiner opine only as to whether the Veteran’s condition was aggravated by his service, but not as to whether his military service could have caused his cervical spine condition because the claimed condition “clearly and unmistakably existed prior to service”. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The RO does not justify its conclusion that the Veteran’s condition “clearly and unmistakably existed prior to service”, and the Board is unclear on the evidence the RO has relied upon. See March 2014 SOC. The Board cannot determine whether the condition “clearly and unmistakably existed prior to service” from the record because the Veteran’s complete service treatment records are not of record. Further, the record does not contain the post-service, civilian medical records authored by Dr. S.G. in 1986 which the Veteran claims contain records of the complaint, treatment, and diagnosis of his cervical spine condition. See October 2018 Appellate Brief. Therefore, on remand, any outstanding relevant service treatment records and private treatment records should be obtained and associated with the record. Thereafter, the Veteran should be afforded a new VA examination to clarify whether he has a current cervical spine disability and, if so, whether it is caused by service, or has been aggravated by his military service. Additionally, the January 2013 examiner determined via imaging studies that the Veteran had arthritis but did not further elaborate. The medical examination opinion obtained on remand should also address whether the Veteran currently has arthritis, and if so, whether it is related to service or has otherwise been aggravated by his military service. 3. Entitlement to service connection for lumbar spine condition is remanded. The Veteran asserts that he has a lumbar spine disability due to an injury that was incurred in 1986 while he was cleaning the range and lifting heavy pallets whereby he injured his neck while stationed in Fort Carson, Colorado. See VA Form 9. The Veteran’s personnel records indicate that the Veteran may have had a period of ACDUTRA during 1986. As stipulated above, the Veteran’s pay records should be obtained from DFAS in order to determine exactly when the Veteran’s dates of ACDUTRA were and whether this injury was incurred in the line of duty for disability compensation purposes. The record also indicates that the Veteran has received ongoing treatment at VA medical centers. See VA Treatment Records received in September 2017. Any outstanding VA treatment records should be obtained on remand. Similarly, as stated above, any outstanding service treatment records as well as the private treatment records authored by Dr. S.G. should be obtained on remand and associated with the record. Thereafter, the VA examiner should also clarify whether the Veteran has a current lumbar spine disability and, if so, whether it is caused by service, or has been aggravated by his military service. This opinion should address the possibility of the incurrence of a relevant injury during any period of active service, including ACDUTRA or INACDUTRA. The matters are REMANDED for the following actions: 1. Associate with the record the Veteran’s outstanding VA treatment records. 2. Associate with the record the Veteran’s outstanding private treatment records from 1986, authored by Dr. S.G. 3. Associate with the record the Veteran’s outstanding service treatment records that are relevant to the issues being remanded, to include any from his earlier periods of reserve service. 4. Provide the Veteran with a SOC as to the issues of entitlement to increased evaluations for service-connected degenerative joint disease of the left knee and the right knee. The Veteran must be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of these issues to the Board. If a timely substantive appeal is not filed with respect to these issues, the claims must not be certified to the Board. 5. Verify the Veteran’s complete ACDUTRA and INACDUTRA dates, to include obtaining pay records from the Defense Finance Service (DFAS) if necessary. Prepare a list of all periods of service. 6. Following completion of steps one through five, schedule the Veteran for VA medical examination(s) to determine whether his claimed cervical spine disability and lumbar spine disability are related to his military service (to include active duty, ACDUTRA and INACDUTRA) or were caused by or aggravated (worsened) by his service-connected disabilities. The examiner must be provided with and review the entire claims file, to include a copy of this remand AND the outstanding service records. Following a review of the evidence of record, to include the Veteran’s lay statements: (a.) The examiner is asked to provide an opinion as to whether the Veteran has any current cervical spine disability. If the Veteran is diagnosed with a cervical spine disability, is it at least as likely as not (50 percent probability or higher), caused by or aggravated (worsened) by the Veteran’s active duty, ACDUTRA and INACDUTRA? The examiner is asked to reconcile, to the extent possible, findings in the January 2013 VA examination report with respect to whether the Veteran currently has arthritis, and if so, whether it is related to service or has otherwise been aggravated by his military service. (b.) The examiner is asked to provide an opinion as to whether the Veteran has any current lumbar spine disability. If the Veteran is diagnosed with a lumbar spine disability, is it at least as likely as not (50 percent probability or higher), caused by or aggravated (worsened) by the Veteran’s active duty, ACDUTRA and INACDUTRA? The examiner is advised that the term “as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide the underlying reasons for any opinions provided. If the examiner is unable to provide this opinion without resorting to speculation, he or she must indicate why this is so. 7. Then, readjudicate the claims for service connection for cervical spine condition and service connection for lumbar spine condition. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.Smith, Law Clerk