Citation Nr: 19132016 Decision Date: 04/24/19 Archive Date: 04/24/19 DOCKET NO. 17-61 026 DATE: April 24, 2019 REMANDED Entitlement to service connection for a back condition as secondary to a meniscal tear and chondromalacia patella of the left knee and/or to total replacement of the right knee associated with a meniscal tear and chondromalacia patella of the left knee is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1984 to January 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Offices (RO) in Baltimore, Maryland. In the VA Form 9, Appeal to Board of Veterans’ Appeals, filed in November 2017, the Representative stated that the Veteran was attempting to obtain a medical opinion from a private provider linking his back condition to his service or to his service-connected disabilities and asked the RO to allow the Veteran 90 days to secure this evidence before certifying the appeal to the Board. It does not appear that the RO responded to this request, as the appeal was certified to the Board later in that month. The Veteran did not submit a medical opinion either before or after his appeal was certified to the Board. To fully satisfy VA’s the duty to assist claimants with their claims, including by providing them with notice describing evidence that could substantiate their claims, the RO should have responded to the Representative’s request in the VA Form 9 with information about how the additional evidence could be submitted before or after the certification of the appeal (and the transfer of the file) to the Board. See 38 U.S.C. §§ 5103(a), 5103A and A(g). The Board notes that the Representative’s request in the VA Form 9 expanded the Veteran’s secondary service connection claim to encompass service connection for a back condition not only as secondary to the service connected disability of the left knee, meniscal tear and chondromalacia patella, but also as secondary to the service connected disabilities of the right knee, total replacement associated with left knee meniscal tear and chondromalacia patella. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Further adjudication must address the expanded secondary service connection claim as well as other theories of entitlement to service connection that are relevant to the claim. See Roebuck v. Nicholson, 20 Vet. App. 307, 213 (2006). A VA Disability Benefits Questionnaire Spine Conditions examination performed in April 2014 yielded diagnoses for the thoracolumbar spine of degenerative arthritis and intervertebral disc syndrome. The examination report noted that the former diagnosis had been made in 2006 and the latter in 2012. The examination report confirmed that the intervertebral disc syndrome had been disclosed by imaging studies, specifically, by a magnetic resonance imaging (MRI) study performed in 2013 (and compared with one made of the lumbar spine dated in 2006) and that the degenerative arthritis had been verified by x-rays. It was noted in the examination report that the Veteran started to experience back pain in 1990, four years after his separation from service, after contending with an abnormal gait from his disabled knee. It was noted in the examination report that the Veteran used a brace (this appeared to be identified a brace for his back) and regularly employed a cane for support. The record reveals that the Veteran received service connection for his left knee disability as of the day after his separation from service in January 1986. His service treatment records show that he underwent arthroscopic surgery for his left knee and was discharged after Medical Board proceedings as unfit for further service because of his left knee condition. He received service connection for the right knee disability that developed and was associated by VA in its rating with that of the left knee as of November 2015. The Veteran filed his claim for service connection of his back condition in June 2012. The April 2014 VA examination report thus confirms that the Veteran has a current back disability, one involving the thoracolumbar spine. The disability diagnoses are clearly stated in the examination report, which contains, in addition, a satisfactory review of the disability’s history. The examination report confirms that the Veteran began to experience pain from his back condition within four years after his separation from service. However, the Board finds that the examination report is inadequate for rating purposes. The opinion offered in the examination report failed to engage the medical question that was central to the claim at the time of the examination: whether the back condition with which the Veteran now contends was caused, or aggravated, by his left knee disability. The opinion expressed in the examination report was that the back condition of the Veteran was less likely than not related to his service-connected condition (presumably, his left knee condition was meant) because his service treatment records showed that he was not treated for, and did not call attention to, any problems with his back nor did he mention problems with his back during a VA orthopedic consultation in 2010. The rationale is unsatisfactory. That there were no inservice notations of a back problem, while it may bear on entitlement to service connection for a back disorder as being directly attributable to service, as the Representative does claim in the alternative in the November 2017 VA Form 9, is an observation that is not pertinent to the question of secondary service connection. That the Veteran did not call attention to his back condition when seen by an orthopedist in 2010 does not negate the fact that he has a current disability, one feature of which, degenerative arthritis, had been diagnosed in 2006. Furthermore, although the examination recognizes that the Veteran started to experience back pain, in 1990, after contending with an abnormal gait from his service connected disabled knee, the opinion did not account for that history in concluding that a relationship between the two conditions was unlikely. A new VA examination is needed to address all theories reasonably raised, including that the disability of the right knee has contributed to his disability of the thoracolumbar spine. The matter is REMANDED for the following action: 1. Schedule the Veteran for a new VA spine examination to determine the etiology of his currently diagnosed degenerative arthritis and intervertebral disc syndrome of the thoracolumbar spine. The Veteran’s VBMS and Virtual VA/Legacy files must be available to and reviewed by the examiner. All tests or studies needed for the examination must be obtained. For each of those conditions, as well as for any additional conditions of the thoracolumbar spine diagnosed in the examination, the examiner must address in the examination report whether it is at least as likely as not (50 percent or greater probability) that the condition is caused or aggravated by the service-connected left knee condition, the service-connected right knee condition, or both; or is attributable to any other injury or disease that the Veteran incurred during service. The examiner must also address in the examination report whether it is at least as likely as not (50 percent or greater probability) that the Veteran manifested arthritis of the thoracolumbar spine during service or within one year after his separation from service in January 1986, or whether the disability is otherwise etiologically related to service. A clear rationale must be provided separately for each of these questions. 2. Advise the Veteran and his representative that the Veteran may obtain and submit to the RO a medical examination report and opinion from a medical professional addressing the questions set out in paragraph 1, above, together with reports of any tests or studies that the physician may obtain. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Pitts, Associate Counsel