Citation Nr: 21065036 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 17-08 165 DATE: October 22, 2021 REMANDED Entitlement to service connection for a right knee disability, claimed as secondary to service-connected disabilities, is remanded. Entitlement to increased disability evaluations for degenerative disc disease of the thoracolumbar spine, rated as 20 percent disabling prior to September 21, 2015; as 10 percent disabling from September 21, 2015, to April 30, 2019; and as 20 percent disabling since May 1, 2019; to include whether the reduction of the disability to 10 percent disabling effective September 21, 2015, was proper, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1980 to June 2004. These claims come before the Board of Veterans' Appeals (Board) on appeal from November 2013 and December 2015 Ratings Decisions of a Board of Veterans Affairs (VA) Regional Office (RO). By way of history, in March 2013, the Veteran filed a claim of entitlement to service connection for a right knee disability secondary to service-connected residuals of chronic right ankle sprains. In July 2015, the Veteran amended his claim to include entitlement to service connection for a right knee disability secondary to disabilities of the hips and service-connected degenerative disc disease of the thoracolumbar spine. In February 2017, the Veteran alleged that his service-connected disabilities of the thoracolumbar spine, bilateral hips, and left knee resulted in an altered gait that caused or aggravated his current right knee condition. In a January 2005 Rating Decision, the RO also granted entitlement to service connection for degenerative disc disease of the thoracolumbar spine and assigned a 20 percent disability evaluation. In July 2015, the Veteran filed a claim of entitlement to an increased evaluation for his service-connected degenerative disc disease of the thoracolumbar spine. However, in a December 2015 Rating Decision, the RO decreased the Veteran's disability evaluation from 20 percent to 10 percent effective September 21, 2015, based on the results of a VA examination conducted on that date. Thereafter, in a June 2019 Rating Decision, the RO granted a 20 percent disability evaluation for degenerative disc disease of the thoracolumbar spine effective May 1, 2019, based on the results of a VA examination conducted on that day. The Veteran seeks entitlement to service connection for a right knee disability and entitlement to increased disability evaluations for degenerative disc disease of the thoracolumbar spine. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. The Board notes that the issue of entitlement to service connection for a right knee disability was last adjudicated by the Agency of Original Jurisdiction (AOJ) in a May 2018 Supplemental Statement of the Case (over three years ago), while the issue of entitlement to higher disability evaluations for degenerative disc disease of the thoracolumbar spine was last adjudicated in a June 2019 Rating Decision (over two years ago). However, since that time, additional treatment records from the VA Mid-Atlantic Health Care Network, dated as recently as November 2019, have been added to the claims file. In addition, the report of an August 2019 VA Back (Thoracolumbar Spine) Conditions examination was subsequently added to the claims file. Crucially, these VA treatment records and examination report, detailing the symptomatology of the Veteran's thoracolumbar spine disability, are directly relevant to both issues on appeal. Significantly, this pertinent evidence, added to the record since the most recent Supplemental Statements of the Case in May 2018 and June 2019, was not reviewed by the AOJ. Although initial AOJ review is automatically waived for evidence submitted by the Veteran or his representative when the VA Form 9 is received after February 2, 2013, the automatic waiver does not apply to VA-generated evidence, such as VA treatment records and examination reports not submitted by the Veteran. 38 U.S.C. § 7105(e). Waiver of a Supplemental Statement of the Case is only applicable to evidence submitted by the Veteran or his representative. See 38 C.F.R. § 20.1305. Although the Veteran was sent an "Additional Evidence Response Form" in July 2021 in which he was asked to waive his right to have his case remanded to the AOJ for review of the additional evidence, no response from the Veteran was received. As such, these claims must be remanded for AOJ review of the newly received evidence. Additionally, also with respect to both issues on appeal, a review of the claims file reveals that the Veteran receives regular VA treatment through the VA Mid-Atlantic Health Care Network. However, as discussed above, the most recent VA treatment records associated with the claims file are dated in November 2019, approximately two years ago. VA treatment records, even if not in the claims file, are nevertheless considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C. § 5103A (b); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). As such, on remand, the Veteran's VA treatment records dated from November 2019 to the present should be obtained from the VA Mid-Atlantic Health Care Network and associated with the claims file. Finally, the Veteran alleges that he has a right knee disability that was caused or aggravated by an altered gait resulting from his service-connected left hip replacement, right hip replacement, degenerative disc disease of the thoracolumbar spine, and right ankle strain. The Board emphasizes that pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability. See Saunders v. Wilkie, 886 F.3d 1356, 1363, 1368, 1369 (Fed. Cir. 2018). The Board finds that, to date, the Veteran has not been afforded an adequate examination to determine the probable nature and etiology of his alleged right knee disability. On remand, such an examination should be obtained. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records dated from November 2019 to the present from the VA Mid-Atlantic Health Care Network. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 2. Provide the Veteran with an appropriate examination to determine the likely nature and etiology of his alleged right knee disorder. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. The examiner should then answer the following: a. Please identify any right knee disability by either (i) diagnosis or (ii) functional impairment. b. As to each right knee disability identified, is it at least as likely as not (50 percent probability or greater) that the disability was incurred in or otherwise related to his period of active-duty service? c. If the answer to (b) is negative, is it at least as likely as not (50 percent probability or greater) that any diagnosed right knee disorder is caused by his service-connected disabilities, to include his left hip replacement, right hip replacement, degenerative disc disease of the thoracolumbar spine, and right ankle strain, or any altered gait caused by any combination of the above disabilities? d. If the answer to (b) or (c) is negative, is it at least as likely as not (50 percent probability or greater) that any diagnosed right knee disorder is aggravated by his service-connected disabilities, to include his left hip replacement, right hip replacement, degenerative disc disease of the thoracolumbar spine, and right ankle strain, or any altered gait caused by any combination of the above disabilities? Aggravation in this context is defined as any increase in disability. In rendering this opinion, the examiner must address the Veteran's reports that his other service-connected orthopedic disabilities put additional stress on his right knee. Additionally, the examiner is reminded that, under Saunders, pain alone that results in functional loss of some kind, even without a clinical diagnosis, may be considered a disability as contemplated by VA law. A rationale for all requested opinions shall be provided. The rationale must include a discussion of the underlying medical principles specific to the facts of this case and not simply reference generic medical literature. If the examiner cannot provide an opinion without resorting to mere speculation, then he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Following any additional development deemed appropriate based on the new evidence added to the record since issuance of the May 2018 and June 2019 Supplemental Statements of the Case, readjudicate the issues on appeal. In doing so, consider all relevant evidence added to the claims file since the May 2018 and June 2019 Supplemental Statements of the Case, to include all VA treatment records and examination reports relevant to the Veteran's claims. If any benefit sought is not granted, then the Veteran should be furnished with another Supplemental Statement of the Case, with copy to the Veteran's representative, and afforded an opportunity to respond before the record is returned to the Board for further review. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anthony M. Flamini The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.