Citation Nr: 18135055 Decision Date: 09/14/18 Archive Date: 09/14/18 DOCKET NO. 15-19 889 DATE: September 14, 2018 REMANDED The claim of entitlement to service connection for low back disability, to include as secondary to service-connected right and left knee disabilities, is remanded. The claim of entitlement to service connection for ischemic heart disease (IHD), claimed as due to herbicide exposure, is remanded. The claim of entitlement to a rating greater than 10 percent for right knee osteoarthritis is remanded. The claim of entitlement to an increased (compensable) rating prior to February 15, 2012, and a rating greater than 0 percent from that date for left knee osteoarthritis is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1966 to August 1970. This appeal to the Board of Veterans’ Appeals (Board) arose from an April 2013 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington recharacterized the Veteran’s service-connected bilateral knee disabilities as right and left knee osteoarthritis (from chondromalacia) and granted increased 10 percent ratings for each knee, effective January 5, 2012 for the left knee and February 15, 2012 for the right knee. The RO also denied service connection for IHD and a low back disability. The Veteran filed a notice of disagreement (NOD) as to the ratings granted and the denials of service connection in May 2013. The RO issued a statement of the case (SOC) in May 2015 and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) later that month. In May 2018, the Veteran offered testimony during a Board hearing before the undersigned Veterans Law Judge at the Seattle RO; a transcript of that hearing is of record. The Board’s review of the claims file reveals that further agency if original jurisdiction (AOJ) action in this appeal is warranted. Regarding the claim for service connection for low back disability, the Veteran was afforded a VA examination in November 2012. The Veteran was diagnosed with lumbar spine degenerative joint disease (DJD) and degenerative disc disease (DDD), intervertebral disc syndrome (IVDS) with left sided femoral nerve involvement. He reported low back pain since separation from service. The examiner opined that it was less likely than not that the low back disability was related to service. As rationale, the examiner stated that he could find no evidence to support the claim and, thus, it was less than likely that the disability was related to service. The Board finds this rationale inadequate. Indeed, the examiner did not address the Veteran’s contention that he has experienced low back pain since service and merely relied on a lack of records substantiating the claim. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). Further, the Veteran testified that he was seen for a low back strain in service, despite the fact that service treatment records (STRs) are silent for any low back problems. See Board Hearing Transcript (Tr.) at 6. Additionally, the Board finds that further opinion is necessary as the Veteran testified that doctors have told him that his low back disability is secondary to his service-connected knee disabilities. See Board Hearing Tr. at 6. This evidence is sufficient to trigger VA’s duty to obtain a medical opinion as to secondary service connection. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Regarding the claim for service connection for IHD, the Veteran contends that he was exposed to herbicides during his service at Udorn Royal Thai Air Force Base. See Board Hearing Tr. at 2-4. Service personnel records (SPRs) reflect service at Udorn Royal Thai Air Force Base from July 1968 through April 1969 as a weapons mechanic. The Veteran testified that his duties required that he be in close proximity to the perimeter and aircraft runway of the base. See Board Hearing Tr. at 2-4. His military occupational specialty (MOS) was weapons mechanic. The Board notes that there are certain chronic diseases, such as IHD, that the VA Secretary has recognized are etiologically associated with exposure to “herbicide agents” during active military, naval, or air service, and are thus presumed to have been incurred during active military service if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). In this context, the term “herbicide agent” is defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). However, VA now recognizes that tactical or tactical-like herbicides were used on the fenced-in perimeters of military bases in Thailand. See Veterans Benefits Administration (VBA) C&P Service Bulletin (May 2010). Thus, VA has determined that exposure to herbicides will be conceded for veterans whose duties placed them at or near the perimeters of certain Thailand military bases during the Vietnam era (February 28, 1961, to May 7, 1975), allowing for presumptive service connection of the diseases associated with herbicide exposure. See VA Adjudication Procedures Manual “Live Manual” (M21-1) part IV, subpt. ii, ch. 1, sec. H.5.a; VBA C&P Service Bulletin (May 2010). VA based this determination of evidence contained in a declassified Vietnam era Department of Defense document titled “Project CHECO Southeast Asia Report: Base Defense in Thailand.” Specifically, the M21-1 provides that if a veteran served with the U.S. Air Force at a specified Royal Thai Air Force Base (RTAFB), of which Udorn is one, as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, herbicide exposure if to be conceded on a direct/fact-founds basis. See M21-1, part IV, subpt. ii, ch. 1, sec. H.5.b. The Board notes that the M21-1 sets forth procedures to verify exposure to herbicides based on service in Thailand during the Vietnam era. If herbicide exposure cannot be conceded on a direct/fact-founds basis, the AOJ is to ask the Veteran for specific information concerning the dates, location, and nature of the alleged herbicide exposure. See M21-1, part IV, subpt. ii, ch. 1, sec. H.5.b. If the Veteran provides that information within 30 days, the AOJ is to review the information and make a determination as to whether exposure to herbicides can be acknowledged on a direct/fact-founds basis. Id. If yes, the AOJ should proceed with any other necessary development and then refer the claim to the rating activity. Id. If no, the AOJ is to either (1) send a request to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides or (2) refer the case to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. Id. In the instant case, the AOJ did not follow the procedures set forth in the M21-1 to verify whether the Veteran was exposed to herbicides based on his service in Thailand. It does not appear from the record that the Veteran was ever asked to provide specific information concerning the dates, location, and nature of the alleged herbicide exposure in Thailand, or that the AOJ either sought verification of the Veteran’s alleged exposure with the JSRRC or referred the matter to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist, as required by the M21-1, despite the fact that the Veteran asserted that his MOS involved him being in the perimeter of the base. Accordingly, the Board finds that the claim for service connection for IHD must be remanded for the AOJ for completion the development required by the M21-1 in cases such as this one. Given that the Veteran has provided lay testimony detailing the duties that required him to be at or near the base perimeters, the Board finds that on remand, the AOJ should contact the JSRRC in an effort to independently verify the Veteran’s exposure to herbicides in Thailand. Finally, regarding the claims for increased ratings, in October 2014, the AOJ attempted to schedule the Veteran for a VA examination to determine the severity of his right and left knee disabilities. The Veteran field to report to the scheduled examinations. However, in November 2014, he wrote to the AOJ to inform them that he was in Arizona for several months and would like his examination rescheduled for the Fall of 2015. The AOJ failed to reschedule the Veteran for another VA examination. Under these circumstances, the Board finds that record suggests that the Veteran has provided good cause for missing his scheduled October 2014 VA examination. See 38 C.F.R. § 3.655. Indeed, it is apparent that the Veteran was out of town during his scheduled VA examination. As such, the AOJ should arrange for him to undergo VA examinations to determine the severity of his service connected bilateral knee disabilities. Also, regarding the claims for higher ratings for bilateral knee disabilities, the Board notes that in Correia v. McDonald, 28 Vet. App. 158 (2016), the United States of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that VA musculoskeletal examinations include joint testing, “wherever possible,” for pain on both active and passive motion, and in weight bearing and non-weight bearing (as appropriate), and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia, 28 Vet. App. at 168-70. Examination of both knee should comply with the mandates of Correia. The Veteran is hereby advised that, failure to report to any scheduled examination(s), without good cause, may result in denial of the claim(s)—in particular, the claims for increased ratings. See 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination(s), the AOJ should obtain and associate with the claims file any copy(ies) of correspondence referencing the date and time of the examination—preferably, any notice(s) of examination—sent to him by the pertinent medical facility. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). The AOJ should also provide the Veteran with proper notice with respect to establishing service connection on a secondary basis. In this regard, while the October 2012 letter advised the Veteran of the evidence and information necessary to substantiate his claims for service connection on a direct basis, he has not been afforded notice regarding secondary service connection. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103. 5103A; 38 C.F.R. § 3,156. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. Adjudication of each higher rating claim should include consideration of whether staged rating—assignment of higher ratings for distinct periods of time based on the facts found—is appropriate. These matters are hereby REMANDED for the following action: 1. Furnish to the Veteran and his representative a letter requesting that the appellant provide information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to one or more claim(s) on appeal that is not currently of record. Specifically request that appellant furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private (non-VA) records. Also in the letter, provide notice as to the information and evidence that is required to substantiate a claim for service connection on a secondary basis. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the matters within the one-year period). 2. If the Veteran responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the file. If any records sought are not obtained, notify the appellant and her representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After records and/or responses received have been associated with the record, attempt to verify with the JSRRC the Veteran’s exposure to herbicides consistent with his service in Thailand at Royal Thai Airforce in Udorn, Thailand beginning June 24, 1968. The JSRRC should be provided with any necessary documentation, to include any relevant service records, the transcript of the Board hearing, as well as any evidence and/or lay statements submitted by the Veteran, to include copies of the statements detailing his MOS duties and/or living situations that required him to be at or near the base perimeters. The JSRRC’s response should be documented in the record. Also, any follow up action requested by the JSRRC should be accomplished. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange to obtain from the November 2012 VA examiner for an addendum opinion addressing the etiology of the Veteran’s low back disability. If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the record, and arrange to obtain an addendum opinion from an appropriate physician based on claims file review (to the extent possible). Only arrange for the Veteran to undergo examination if one is deemed necessary in the judgment of the physician designated to provide the addendum opinion. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the addendum opinion/examination report should include discussion of the Veteran’s documented history and lay assertions. If the Veteran is examined, all indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and clinical findings should be reported in detail. The physician should clearly identify all low back disability(ies) [resent at any point pertinent to the current February 2012 claim (even if now asymptomatic or resolved). Then, with respect to each such diagnosed disability, the physician is requested to provide opinion, based on consideration of all document evidence and assertions, and consistent with sound medical principles, addressing the following: a. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during active service or is otherwise medically-related to service. In answering the above, the physician must special comment on the Veteran’s reports of an in-service low back strain and of continuity of back symptoms since active service. b. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability (a) was caused OR (b) is or has been aggravated (worsened beyond the natural progression) by his service-connected right and/or left knee disability(ies). If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation to include by identifying, to the extent possible, the baseline level of disability prior to aggravation. Notably, in addressing nexus to service, the absence of documented evidence of a specific diagnosis and/or associated symptoms during or shortly after service should not, alone, serve as the sole basis for a negative opinion. In this regard, the physician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating the requested opinion. If lay assertions in any regard are discounted, the physician should clearly so state, and explain why. Complete, clearly-stated rationale for the conclusions reached must be provided. 5. Also after all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA examination of his bilateral knees by an appropriate medical professional. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should include discussion of the Veteran’s documented history and lay assertions. The examiner should conduct range of motion testing of each knee (expressed in degrees) on both active motion and passive motion and in both weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly so state and explain why. The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which pain begins. Also, if the examination is not conducted during a flare-up, based on examination results and the Veteran’s documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should indicate whether there is any ankylosis in either knee, and, if so, whether it is favorable or unfavorable, and the angle at which the knee is held. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 6. If the Veteran fails to report to any scheduled examination(s), associate with the claims file any copy(ies) of correspondence referencing the date and time of the examination(s)—preferably, any notice(s) of examination—sent to him by the pertinent medical facility. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal. If the Veteran fails, without good cause, to report to the scheduled knee examination, in adjudicating the claims for increased ratings, apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate the claims on appeal considering all pertinent evidence (to particularly include that evidence added to the electronic claims file since the last adjudication of the claims in May 2015), and all legal authority (to include, with respect to each higher rating claim, consideration of whether staged rating of the disability is appropriate). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel