Citation Nr: 1806830 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 11-16 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Prior to March 17, 2016, entitlement to an initial compensable rating, and on and after March 17, 2016 entitlement to a rating in excess of 20 percent, for service-connected dry eye syndrome and bilateral pterygium. 2. Entitlement to service connection for a right knee disorder, to include the right knee as a secondary to the left knee disorder. 3. Entitlement to service connection for a left knee disorder. 4. Entitlement to service connection for a bilateral ankle disorder, to include as secondary to a left knee disorder. 5. Entitlement to service connection for a low back disorder. 6. Entitlement to service connection for dizziness/vertigo and lack of balance. REPRESENTATION Veteran represented by: American Legion WITNESS AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD E. Kunju, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1955 to June 1958, from July 1958 to July 1961, and from August 1961 to August 1978. This case comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In September 2017, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. In a March 2017 rating decision, the RO increased the evaluation of the Veteran's dry eye syndrome and bilateral pterygium to 20 percent effective March 17, 2016. This decision constitutes a partial grant of the benefits sought on appeal. Thus the issue remains on appeal and are for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). This case consists of documents in the Veterans Benefits Management System (VBMS) and in Legacy Content Manager (LCM). LCM includes VA treatment records. Otherwise, documents in LCM are duplicative of those in VBMS or are irrelevant to the issues on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Remand is required to obtain private treatment records and to afford the Veteran adequate VA examinations and opinions. First, remand is required to obtain private treatment records for all claims. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, including making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159(c)(1) (2017). The record indicates that the Veteran has been seen by different practitioners regarding various ailments; however the record does not appear to contain full treatment records. Regarding the orthopedic claims, the Veteran testified that he was seen at Southern Bones and Joint and he was told the records no longer exist. An attempt to obtain these records has not been made. Regarding his claim for dry eye syndrome and bilateral pterygium, the claims folder contains private treatment records of yearly eye examinations between 2001 and 2008. As it appears that the Veteran received an eye examination every year during that timeframe, clarification is needed as to whether the Veteran has attended eye examinations yearly after 2008 and if so, these records should be obtained. Regarding his claim for dizziness, the record contains one private treatment note from June 2002 diagnosing vertigo, but no current treatment records. At the September 2017 hearing, the Veteran mentioned that he had seen his primary care physician as recently as two weeks prior to the hearing, however these records have not been associated with the claims file. Therefore, remand is required to attempt to obtain these records. Second, regarding the Veteran's claim for dry eye syndrome and bilateral pterygium, remand is required to obtain an addendum opinion. In the June 2009 rating decision, the RO granted service connection for bilateral pterygium based on in-service incurrence and current disability as shown in private medical records. No VA examination was provided. A noncompensable evaluation was assigned based on the absence of visual impairment. A March 2016 VA examination also noted normal visual acuity and visual fields, but assigned a 20 percent evaluation based on active conjunctiva process. At the September 2017 Board hearing, however, the Veteran testified that throughout the appeal period, his eyes are constantly watering and feel uncomfortable and that his symptoms have remained consistent. An addendum opinion should be obtained to address whether the severity of this condition has been medically consistent. See e.g., Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (noting that a "retrospective medical opinion may be necessary and helpful" in cases when the evidence is insufficient or unclear for an adequate determination). Third, remand is required regarding the claims for a back disorder and for a bilateral knee disorder. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A central issue in determining the probative value of an examination is whether the examiner was informed of the relevant facts in rendering a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. Stefl, 21 Vet. App. at 124. Regarding the claim for bilateral knees, in February 2017, the Veteran was afforded a VA examination. The diagnosed was bilateral knee joint osteoarthritis. The Veteran reported that he hurt his knees in 1966 while exercising. The Veteran reported that at the time, he only had left knee swelling. The Veteran reported that currently, he has pain in both knees when walking and driving. The examiner opined that the Veteran had multi-level degenerative changes of the knees, right greater than the left, that were consistent with his age and normal wear and tear. The examiner noted that the Veteran had an injury while on active duty in 1966, but no problems noted upon exit examination in 1978. The examiner stated that the Veteran had no left knee problems until 2008. The examiner opined that it was less than likely that his current left knee condition was incurred in or caused by the left knee injury during service. The examiner did not provide an opinion regarding the Veteran's right knee. The Board finds that remand is required to obtain an addendum opinion that addresses the Veteran's lay statements. At the September 2017 Board hearing, the Veteran testified that he injured both his knees during service, however he focused on his left knee because it was worse. Also, the Veteran testified that he jumped off of tanks because there were no ladder or steps, and that this action put wear and tear on his body. Furthermore, the Veteran testified that his right knee disorder should also be considered on a secondary basis to his left knee disorder as the left knee has affected his gait and weight distribution. Therefore, an addendum opinion must be obtained to address these contentions upon remand. Regarding the claim for a back disorder, the Veteran was afforded a VA examination regarding his back in February 2017. The diagnosis was degenerative arthritis of the spine. The Veteran reported that he hurt his back playing volleyball in 1978 and was instructed to avoid back strain. The Veteran reported that his back pain continued after the incident. The examiner found that the Veteran had degenerative joint disease of the spine with facet hypertrophic changes that are consistent with his age and wear and tear. The examiner explained that while the Veteran had back pain in-service, there are no documented back problems until 2008. The examiner opined that it is less than likely that his current back condition was incurred in or caused by his in-service back injury. The Board finds this opinion inadequate. The examiner did not address the Veteran's report of continuity of symptoms at the VA examination, which the Veteran also testified to at the board hearing. Furthermore, the VA examiner indicated that there were no documented back problems until 2008. However, the record contains an October 1992 VA treatment record indicating low back pain. Fourth, regarding the claims for bilateral ankles disorder and dizziness, the Veteran should be afforded VA examinations. A VA examination is required when (1) there is evidence of a current disability, (2) evidence establishing an 'in-service event, injury or disease,' or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" related to service is a low threshold. McLendon, 20 Vet. App. at 83. Regarding the claim for bilateral ankles, the Veteran's VA treatment records indicate complaints of ankle pain and private treatment records include a left ankle subtalar arthroereisis procedure. The Veteran testified that during service, he experienced ankle pain in the morning when he would begin to walk, which would get better after activity. The Veteran testified that he never went to sick hall for his ankles. The Veteran testified that he experienced pain in his ankles while standing within one year of service discharge. Additionally, at the September 2017 Board hearing, the Veteran testified that he jumped off of tanks because there were no ladder or steps, and that this action put wear and tear on his body. Furthermore, the Veteran testified that his bilateral ankle disorder should also be considered on a secondary basis to his left knee disorder. Therefore the Veteran should be given a VA examination as there is current disability and competent testimony of an in-service event and testimony that pain continued since that time. Regarding the claim for dizziness and loss of balance, the Veteran testified that he was diagnosed with vertigo by his private physician as indicated by a 2002 private treatment record. The STRs contain a May 1977 record of dizziness associated with sinus congestion. In his April 1978 report of medical history, the Veteran indicated that he had headaches and dizzy spells frequently for approximately two weeks. The Veteran testified that he has experienced recurring dizziness since service. Given the Veteran's current diagnosis of vertigo, his in-service notation of dizziness, and his report of continuity of symptoms, the Veteran should be afforded a VA examination. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the appropriate VA Medical Center(s) and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts, the records cannot be obtained, notify the Veteran and his representative and (a) identify the specific records that cannot be obtained; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The Veteran must then be given an opportunity to respond. 3. After any additional records are associated with the claims file, obtain an opinion from a VA examiner to determine the etiology of his low back disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. If an examination is deemed necessary, one must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed low back disorder (degenerative disc disease and degenerative joint disease) had onset in, or is otherwise related to, active service. The examiner must specifically address the following: 1) the Veteran's lay statements of record indicating continuity of symptoms after service; 2) the STRs; 3) the February 2017 VA examination report; and 4) the October 1992 VA treatment record indicating low back pain. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination from a suitably qualified VA examiner to determine the etiology of his bilateral ankle disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must elicit a full history from the Veteran and consider the lay statements of record. a) Identify all current bilateral ankle disorders. b) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed bilateral ankle disorder had onset in, or is otherwise related to, active service. c) The examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that each bilateral ankle disorder is caused or aggravated by the Veteran's left knee disorder. The examiner must specifically address the following: 1) VA and private treatment records indicating ankle pain, left ankle subtalar arthroereisis procedure, and the Veteran's admission that he has sprained his ankle a number of times over the years; 2) the Veteran's September 2017 Board hearing testimony that he would experience ankle pain in-service and that jumping on and off tanks put wear and tear on his body; 3) the Veteran's contention that his bilateral ankle is secondary to his left knee disorder. 5. After any additional records are associated with the claims file, obtain an opinion from a VA examiner to determine the etiology of his bilateral knee disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed left and right knee disorder had onset in, or is otherwise related to, active service. The examiner must consider the following: 1) STRs indicating an left knee injury in August 1978; 2) the February 2017 VA examination report providing a negative nexus; and 3) the September 2017 hearing testimony that he injured both knees but focused on his left knee during service as it was more severe, and that he suffered pain during service due to the duties of his military occupational specialty. Second, the examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that the right knee disorder is caused or aggravated by the Veteran's left knee disorder. 6. After any additional records are associated with the claims file, obtain an opinion from a VA examiner regarding the severity of the Veteran's service-connected dry eye syndrome and bilateral pterygium prior to March 17, 2016. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. If an examination is deemed necessary, one must be provided. First, the examiner must determine the current severity of the Veteran's eye disability, utilizing the appropriate Disability Benefits Questionnaire. Second, the examiner must provide an opinion regarding the period prior to March 17, 2016 - according to the Veteran's lay statements and the medical evidence of record - was there a unilateral or bilateral disorder of the lacrimal apparatus, visual impairment, active conjunctivitis, and/or disfigurement? The examiner must address the following: 1) private treatment records regarding bilateral pterygium treatment; 2) the March 2016 VA examination; and 3) the Veteran's September 2017 hearing testimony that he experienced the same symptoms throughout the period on appeal. 7. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination from a suitably qualified VA examiner to determine the etiology of his dizziness/vertigo. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The Veteran is competent to attest to factual matters of which he has first-hand knowledge. The examiner must elicit a full history from the Veteran and consider the lay statements of record. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must provide a fully reasoned explanation. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed dizziness/vertigo had onset in, or is otherwise related to, active service. The examiner must address the following: 1) the May 1977 STR indicating dizziness associated with sinus congestion; 2) April 1978 report of medical history where the Veteran indicated that he had headaches and dizzy spells frequently for approximately two weeks; 3) 2002 private treatment record diagnosing vertigo; 4) the September 2017 hearing testimony where the Veteran testified that he experiences recurring dizziness since his time in in-service. 8. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 9. Ensure compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 10. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have 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 of Veterans' Appeals 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).