Citation Nr: 1821997 Decision Date: 04/12/18 Archive Date: 04/25/18 DOCKET NO. 14-28 979A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a left knee disability, to include as secondary to a right knee disability. 4. Entitlement to service connection for a right hip disability. 5. Entitlement to service connection for a left hip disability, to include as secondary to a right hip disability. 6. Entitlement to service connection for a stomach condition, to include as secondary to a back, knee, or hip disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Eric Struening, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1975 to October 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2012 and September 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The February 2012 rating decision denied service connection for a low back disability, right knee disability, left knee disability, and a stomach disability. The September 2013 rating decision denied service connection for a right hip disability and a left hip disability. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that the February 2012 VA knee examination, February 2012 VA back examination, August 2013 VA hip examination, and December 2014 VA examination are inadequate. The December 2014 VA examination for his back, knees, and hips disabilities is inadequate as the examiner did not review the Veteran's claims file and did not provide etiology opinions. The February 2012 and August 2013 examiners opined the Veteran's bilateral knee, back, and bilateral hip disabilities were less likely than not incurred in or caused by an in-service injury, event, or illness because the Veteran did not report knee, back, or hip injury or pain during service, respectively. However, these examiners did not discuss whether the Veteran's knee, back, or hip disabilities are related to his in-service parachute jumps. Throughout the period on appeal, Veteran has asserted that his current low back disability, right and left knee disabilities, and right and left hip disabilities are due to his in-service parachute jumps. The Veteran's DD Form 214 shows he received a Parachutist Badge and received medical training with a Military Occupation Specialty (MOS) of medical specialist. Additionally, a January 2011 VA provider noted that the Veteran's service as a paratrooper "could be the early source of the start of his right hip disease." Accordingly a remand in necessary to obtain adequate medical opinions. Additionally, in June 2013 the Veteran asserted that his left hip disability is secondary to his right hip disability and his left knee disability is secondary to his right knee disability. On remand, all theories of entitlement should be considered. Regarding the Veteran's claimed stomach disability, on July 2011 VA examination gastroesophageal reflux disease (GERD) was diagnosed. The examiner opined that his GERD is less likely than not caused by or a result of his stomach condition shown during active duty service, noting that GERD is most commonly caused by diet, ETOH, obesity, smoking, and medication. In his August 2014 VA Form 9 substantive appeal, the Veteran contended that his obesity is the result of inactivity due to pain from his claimed joint disabilities. Accordingly, as obesity could qualify as an "intermediate step" between the Veteran's claimed musculoskeletal disabilities and his GERD, the Veteran's claim for a stomach condition is inextricably intertwined with the issues of service connection for a back, bilateral knee, and bilateral hip disabilities and must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). It also appears that pertinent VA and private treatment records may be outstanding. The Veteran identified receiving treatment for his stomach condition in August 1986 at the Jesse Brown VA Medical Center in Chicago, Illinois, on a January 2011 VA Form 21-4142, Authorization and Consent to Release Information to the VA. The only treatment records from a Chicago VA medical Center are from February 1977. Additionally, the record reflects that the Veteran had an intercurrent back injury while working at a VA hospital in September 2010. Treatment records regarding his September 2010 back injury are not associated with the record. As VA and/or private treatment records are likely to contain pertinent information, and VA treatment records are constructively of record, they must be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file copies of any outstanding VA treatment records, to include August 1986 treatment for a stomach condition at Jesse Brown VA Medical Center in Chicago, Illinois. 2. Obtain the names and address of all providers who treated the Veteran for a back, knee, hip, or stomach disability since service not already associated with the record. After securing the necessary releases, take all appropriate action to obtain these records, to include records of treatment for a September 2010 workplace incident and updated treatment records from Dr. S.F.B. 3. After the completion of the above, schedule the Veteran for an appropriate examination to determine the current nature and likely etiology of any back, knee, and hip disability. Copies of all pertinent records should be made available to the examiner for review. Based on an examination, review of the record, and any tests or studies deemed necessary the examiner should provide an opinion as to the following: a. Identify all currently diagnosed back disabilities. b. For each currently diagnosed back, is it at least as likely as not (50 percent probability or greater) that the disability is related to the Veteran's active duty service, to include as due to in-service parachute jumps. The examiner should consider and discuss as necessary the Veteran's intercurrent September 2010 back injury and the February 2013 private examination. c. Identify all currently diagnosed right knee disabilities. d. For each currently diagnosed right knee disability, is it at least as likely as not (50 percent probability or greater) that the disability is related to the Veteran's active duty service, to include as due to in-service parachute jumps. The examiner should consider and discuss as necessary the Veteran's intercurrent September 2010 back injury and the February 2013 private examination. e. Identify all currently diagnosed left knee disabilities. f. For each currently diagnosed left knee disability, is it at least as likely as not (50 percent probability or greater) that the disability is related to the Veteran's active duty service, to include as due to in-service parachute jumps. The examiner should consider and discuss as necessary the Veteran's intercurrent September 2010 back injury and the February 2013 private examination. g. If, and only if, the answer to (f) is no and the answer to (d) is yes, then is it at least as likely as not (50 percent probability or greater) that any currently left knee diagnosed is caused or aggravated by his right knee disability? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. h. Identify all currently diagnosed right hip disabilities. i. For each currently diagnosed right hip disability, is it at least as likely as not (50 percent probability or greater) that the disability is related to the Veteran's active duty service, to include as due to in-service parachute jumps. The examiner should consider and discuss as necessary the opinion of the January 2011 VA provider that his service as a paratrooper "could be the early source of the start of his right hip disease," the Veteran's intercurrent September 2010 back injury, and the February 2013 private examination. j. Identify all currently diagnosed left hip disabilities. k. For each currently diagnosed hip knee disability, is it at least as likely as not (50 percent probability or greater) that the disability is related to the Veteran's active duty service, to include as due to in-service parachute jumps. The examiner should consider and discuss as necessary the Veteran's intercurrent September 2010 back injury and the February 2013 private examination. l. If, and only if, the answer to (k) is no and the answer to (i) is yes, then is it at least as likely as not (50 percent probability or greater) that any currently left knee diagnosed is caused or aggravated by his right hip disability? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. m. If the examiner determines that the ANY back, right or left knee, or right or left hip disability IS at least as likely as not (50 percent probability or greater) related to his military service, the examiner MUST ALSO address the following: (1) Whether any or all of these identified disabilities caused the Veteran to become obese (through lack of exercise); (2) if so, whether the obesity as a result of these disabilities, in whole or in part, caused or aggravated GERD. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. 4. The AOJ should then review the record and re-adjudicate the claims. If any benefit remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant 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. §§ 5109B, 7112 (West 2012). _________________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), 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).