Citation Nr: 18155369 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 15-00 064 DATE: December 4, 2018 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to an evaluation in excess of 10 percent from May 5, 2010 to August 25, 2011, and an evaluation in excess of 20 percent from August 26, 2011, for left patella chondromalacia is remanded. Entitlement to an evaluation in excess of 10 percent for limitation of flexion of the left knee is remanded. Entitlement to an evaluation in excess of 20 percent for right patella chondromalacia, status post Hauser, is remanded. Entitlement to an evaluation in excess of 10 percent for right knee degenerative arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from March 1977 to April 1985. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in September 2010 and May 2015 by the Department of Veterans Affairs (VA) Regional Office (RO). In the September 2010 rating decision, the RO denied a higher than 20 percent evaluation for right patella chondromalacia, status post Hauser; and denied a higher than 10 percent evaluation for left patella chondromalacia. The Veteran appealed for higher evaluations. During the pendency of the appeal, the RO issued a June 2012 rating decision granting a 20 percent evaluation for left patella chondromalacia, effective August 26, 2011; granting service connection for right knee degenerative arthritis and assigning a 10 percent evaluation, effective August 26, 2011; granting service connection for limitation of flexion of the left knee and assigning a 10 percent evaluation, effective August 26, 2011; and denying a higher than 20 percent evaluation for right patella chondromalacia, status post Hauser. The Veteran continued to appeal for higher evaluations for his bilateral knee disabilities. AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claimant is presumed to be seeking the maximum rating). In the May 2015 rating decision, the RO denied service connection for degenerative disc disease (DDD) of the lumbar spine. The Veteran appealed that decision. In July 2018, the RO issued a statement of the case; but, no VA Form 9 was filed. Nevertheless, within 60 days of the July 2018 SOC, the RO received a September 2018 statement from the Veteran’s representative, which addressed this issue. Accordingly, the Board will liberally construe the September 2018 statement as a substantive appeal, filed in lieu of a VA Form 9. In an October 2018 statement, the Veteran withdrew his request for a Board hearing. 1. Entitlement to service connection for a lumbar spine disability is remanded. In an April 2015 VA opinion, the VA examiner opined that the Veteran’s currently diagnosed DDD of the lumbar spine was less likely than not incurred in or caused by his military service. The opinion was based on the findings that the examiner was unable to identify any objective evidence in the Veteran’s service medical records documenting continuous medical evaluation, management or treatment for a low back condition during his active duty service and that the Veteran’s history of low back pain during service would not be expected to result in a chronic low back condition or residuals. However, while the VA examiner cited to 1982 service treatment records documenting that the Veteran had minimal scoliosis in the lumbar region, the VA examiner failed to explain how the Veteran’s in-service diagnosis did not result in his current diagnosis for DDD of the lumbar spine. Further, the VA examiner did not address a March 1985 letter from the Veteran’s private physician, which noted that 1982 lumbar spine x-rays revealed a narrowed disc space at L5/S1. According to the private physician, such narrowing puts excess stress on the facet joints leading to early degenerative changes in the facet joints and the disc. The private physician also noted that running and jumping would definitely aggravate this type of low back condition. Given that the April 2015 VA examiner did not provide a sufficient rationale addressing all the relevant clinical evidence of record, the Board finds that the April 2015 VA opinion is inadequate, and a remand is required to obtain a supplemental VA opinion to determine the etiology of the Veteran’s current lumbar spine disability. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In addition, the record includes another April 2015 VA opinion, in which the VA examiner opined that the Veteran’s current DDD of the lumbar spine was less likely than not proximately due to or the result of his service-connected bilateral knee disabilities. The VA examiner found that such a correlation could not be explained with known neuroanatomical principles and with the available objective evidence. The Board finds that this opinion is also inadequate. First, while this opinion addresses causation, it does not address whether the Veteran’s current lumbar spine disability was aggravated by his service-connected bilateral knee disabilities. Next, as previously noted above, the record includes a March 1985 letter from the Veteran’s private physician. In that letter, the private physician, noting the Veteran’s poor prognosis for recovery associated with his knees, opined that his bilateral knee problems could very well aggravate his lumbar scoliosis causing increased pain and discomfort which would most likely increase with the age of the patient. Given that the April 2015 VA examiner did not provide an aggravation opinion and did not address the March 1985 private opinion suggesting a link between the Veteran’s knees and his lumbar scoliosis, a remand is required to obtain a supplemental VA opinion to determine the etiology of the Veteran’s current lumbar spine disability. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Allen v. Brown, 7 Vet. App. 439, 448 (1995). 2. Entitlement to an evaluation in excess of 10 percent from May 5, 2010 to August 25, 2011, and an evaluation in excess of 20 percent from August 26, 2011, for left patella chondromalacia is remanded. 3. Entitlement to an evaluation in excess of 10 percent for limitation of flexion of the left knee is remanded. 4. Entitlement to an evaluation in excess of 20 percent for right patella chondromalacia, status post Hauser, is remanded. 5. Entitlement to an evaluation in excess of 10 percent for right knee degenerative arthritis is remanded. Since the Veteran’s June 2012 VA orthopedic examination, he has indicated that his bilateral knee disabilities have worsened. In a November 2014 statement, the Veteran stated that due his bilateral knee disabilities, his quality of life had been impaired. He specifically requested that he receive a new VA examination for his bilateral knee disabilities. VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of his service-connected disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also 38 C.F.R. § 3.326(a). As the evidence suggests that the Veteran’s service-connected bilateral knee disabilities may have worsened since his last VA examination, a remand is required to determine the current severity of his service-connected disabilities. The matters are REMANDED for the following actions: 1. Obtain all the Veteran’s outstanding treatment records for his lumbar spine disability and bilateral knee disabilities that are not currently of record. 2. Obtain an addendum VA opinion from an appropriate clinician regarding whether the Veteran’s currently diagnosed DDD of the lumbar spine is at as likely as not related to his active duty service, to include his 1982 diagnosis of mild scoliosis. The clinician must also provide an opinion regarding whether the Veteran’s currently diagnosed DDD of the lumbar spine is at least as likely as not proximately due to, or aggravated beyond its natural progression by, his service-connected bilateral knee disabilities, either independently or in combination. In providing the above opinions, the clinician must address the Veteran’s in-service diagnosis of mild scoliosis and the March 1985 private opinion. A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral knee disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. The examiner should comment on the extent of any functional impairment caused by the Veteran's service-connected bilateral knee disabilities, to include in an occupational setting and in performing ordinary, daily activities. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Journet Shaw