Citation Nr: 1809577 Decision Date: 02/14/18 Archive Date: 02/27/18 DOCKET NO. 14-10 704 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a low back disorder, to include as secondary to service-connected left knee disability. 2. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected left knee disability. 3. Entitlement to service connection for a keloid scar. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.M. Kreitlow INTRODUCTION The Veteran had active military service from November 1986 to July 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared and testified at a Board video-conference hearing held at the RO before the undersigned Veterans Law Judge in February 2017. A transcript of this hearing is associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board finds that remand of the Veteran's claims is required for further development. At the Veteran's hearing, he raised for the first time that his claimed right knee and low back disorders are secondary to his service-connected left knee disability. He also raised the contention that his keloid scar condition was due to a rash he had in service. In August 2010, the Veteran filed a VA Form 21-526 on which he claimed service connection for residuals of a low back strain that began in service in 1988 and for residuals of a keloid scar on his head that began in service in 1989. In January 2011, on a VA Form 21-4138, the Veteran added a claim for service connection for a right knee injury that occurred while he was in service. Although he contends he had treatment for these claimed disorders during his military service, his service treatment records are silent for any such treatment. As to his low back disorder, on a VA 21-526EZ Form submitted in October 2012, the Veteran related that, he was an Aviation Fueler on the U.S.S. Carl Vincent and was taken out of that rating and placed on light duty and had to work in the Fuel Lab to prevent further injury to his lower back. The Board notes that the Veteran's service personnel records have not been obtained, which might contain information assisting in verifying his change in work assignments as he has stated. Thus, on remand, such records should be obtained. Moreover, the VA treatment records in the claims file obtained from the Martinez Outpatient Clinic start in September 1999 with a General Surgery note showing that the Veteran was status post removal of a keloid from the posterior scalp on July 28, 1999. The Veteran's claim for keloid scar is directly related to the records relating to the treatment of this keloid and its removal, and are highly relevant to his claim. However, the current state of the record does not indicate whether earlier records are not available. Thus, on remand, efforts need to be made to obtain those earlier treatment records and, if not available, the record must indicate that such is the case. Finally, since the Veteran raised for the first time the theory of entitlement to service connection on a secondary basis for his right knee and low back disorders as related to his service-connected left knee disability and that his keloid scar is related to the rash he was treated for in service at the February 2017 Board hearing, additional notice and development as to those theories of entitlement need to be conducted prior to the Board rendering a final decision on the Veteran's claims. Specifically, the Board finds that remand is necessary to provide the Veteran with VA examinations as to his low back disorder and the keloid scar claims as there is sufficient evidence to trigger VA's duty to assist and no prior examinations were given or medical opinions obtained. As for the right knee claim, an examination was obtained in August 2011. The Board notes that the injury the Veteran described at this examination (being injured in February 1989 while playing basketball and seeking medical attention and being treated with a knee immobilizer, crutches and Motrin) is exactly what the service treatment records show happened when he injured his left knee in service, for which service connection has been granted. Based upon the fact that the Veteran's service treatment records show he injured his left knee rather than his right one, the VA examiner opined that the currently diagnosed right knee strain is not caused by or a result of the Veteran's military service. The Veteran has not provided any other contentions as to how his current right knee disorder could be directly related to his military service. However, remand is now warranted for consideration of whether his right knee disorder may be secondary to his service-connected left knee disorder. At the Board hearing, he claimed that his right knee is worse because of compensating for his left knee disability. Therefore, a medical opinion is needed as to whether the Veteran's current right knee disorder is caused or aggravated by his service-connected left knee disorder. Accordingly, the case is REMANDED for the following action: 1. Please provide the Veteran with notice on how to establish a claim for secondary service connection. 2. Please request any outstanding VA and non-VA treatment records, including (1) from the VA Outpatient Clinic in Martinez, California, from July 1989 to September 1999 relating to the Veteran; and (2) medical records of July 28, 1999 removal of keloid from the posterior scalp; and (3) relevant VA records developed since March 2014. If any records are unavailable, such should be documented in the record along with the efforts to obtain such records. 3. Please obtain the Veteran's service personnel records from the National Personnel Records Center (NPRC) or any other appropriate agency. 4. After all additional documentation has been obtained and associated with the Veteran's claims file, please schedule the Veteran for the following VA examinations. The claims file must be provided to each examiner for review in conjunction with the examination, and such review should be noted in the examination report. Spine examination for a low back disorder - After reviewing the file and conducting any necessary testing, the examiner should render a diagnosis as to any current low back disorder the Veteran may have. For each disorder found on examination, the examiner should provide the following opinions: (a) Is it at least as likely as not (i.e., at least a 50 percent probability) that the current low back disorder is related to any disease, injury or event incurred during service? The examiner should consider and discuss whether the Veteran's statements (and any evidence verifying them) that he was an Aviation Fueler in service aboard the U.S.S. Carl Vincent and was taken out of that rating and placed on light duty in the Fuel Lab to prevent further injury to his lower back (possibly occurring around October 1987), see October 23, 2012 VA Form 21-526EZ and March 31, 2014 VA Form 9. (b) Is it at least as likely as not (i.e., at least a 50 percent probability) that the current low back disorder is proximately due to or the result of the Veteran's service-connected left knee disability? The examiner should consider and discuss the evidence as appropriate, including the note from the Veteran's treating VA physician received in February 2015 stating that the Veteran's left knee pain/condition could possibly having contributed to his chronic low back pain, and any specific contentions raised by the Veteran, such as that his balance is off because of his left knee and that he has been told this has caused his back problem. (c) Is it at least as likely as not (i.e., at least a 50 percent probability) that the current low back disorder is aggravated by the Veteran's service-connected left knee disability? Knee/Lower Leg examination for right knee disorder - After reviewing the file and conducting any necessary testing, the examiner should render a diagnosis as to any current right disorder the Veteran may have. For each disorder found on examination, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the current right knee disorder is (1) proximately due to, the result of or (2) has been aggravated by the Veteran's service-connected left knee disability. The examiner should consider and discuss the evidence as appropriate, including any specific contentions raised by the Veteran, such as that his right knee was made worse by compensating for his left knee. Skin diseases examination for keloid scar on head - After reviewing the file, the examiner should render a diagnosis and provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's keloid scar is related to any disease, injury or event incurred during service, specifically whether it is related to the tinea versicolor the Veteran was treated for in service. The examiner should provide a complete explanation for all opinions. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 6. Thereafter, readjudicate the Veteran's claims. If such action does not resolve the claims, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, these claims should be returned to this Board for further appellate review, if in order. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. §§ 5109B, 7112 (2012). _________________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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).