Citation Nr: 9925908 Decision Date: 09/10/99 Archive Date: 09/21/99 DOCKET NO. 89-44 769 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to secondary service connection for a back disorder. 2. Entitlement to an increased combined rating for a postoperative left knee disability, currently evaluated in combination as 20 percent disabling. 2. Entitlement to an increased combined rating for a right knee disability, currently evaluated in combination as 20 percent disabling. 3. Entitlement to an increased rating for a psychiatric disability, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Horrigan, Counsel INTRODUCTION The veteran served on active duty from July 1972 to July 1975 and from May 1977 to May 1981. This matter comes before the Board of Veterans' Appeals (Board) from a March 1989 rating action of the RO which denied secondary service connection for a back disorder, increased the evaluation for the veteran's service-connected left knee disability from 10 to 20 percent, and increased the evaluation for the veteran's right knee disability from noncompensable to 10 percent. In July 1989, the veteran appeared and gave testimony at a hearing before a hearing officer at the RO, a transcript of which is of record. This case was remanded by the Board in May 1990 for further development. In December 1990, the veteran appeared and gave testimony at a hearing before a hearing officer at the RO, a transcript of which is of record. In a rating action of August 1993, the RO denied an evaluation in excess of 10 percent for the veteran's service-connected psychiatric disability. In December 1993, the veteran again appeared and gave testimony at a hearing before a hearing officer at the RO, a transcript of which is of record. Pursuant to the hearing officer's decision, the RO, in a rating action of February 1995, increased the evaluation for the veteran's service-connected psychiatric disorder to 30 percent disabling, and increased the evaluation of the veteran's service-connected right knee disability to 20 percent disabling, both effective from October 1988. The RO confirmed and continued the previously assigned 20 percent evaluation for the veteran's left knee disability. In February 1997, the veteran appeared and gave testimony at a hearing before the Board, a transcript of which is of record. During the hearing, the veteran withdrew the issue of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for status post gallbladder disease, which had previously been certified for appellate consideration. This case was again remanded by the Board for further development in June 1997. The case is now before the Board for appellate consideration at this time. The issues of entitlement to an increased combined rating for each knee disorder and the issue of entitlement to an increased rating for a psychiatric disorder will be discussed in the remand section of this decision. As noted in the Board's June 1997 remand, the veteran is also seeking a total rating for compensation purposes based on individual unemployability. This issue is again referred to the RO for appropriate action. FINDING OF FACT 1. The veteran's has a low back disorder which is aggravated by his service connected left knee disability and service connected right knee disability. CONCLUSION OF LAW The veteran's back disability is proximately due to and the result of service-connected left knee disability and right knee disability. 38 U.S.C.A.§ 5107(a) (West 1991 & Supp. 1998); 38 C.F.R.§ 3.310(a) (1998). REASONS AND BASES FOR FINDING AND CONCLUSION The Board notes initially that the veterans claim of entitlement to secondary service connection for a back disorder is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a), in that it is plausible. No further assistance to the veteran is required in order to satisfy the VA's duty to assist him in the development of this claim as mandated by 38 U.S.C.A. § 5107(a). On VA medical examination in July 1981, the veteran complained of low back pain. Evaluation of the lumbosacral spine showed normal range of motion and no muscle spasm. The lumbosacral spine was described as normal and straight leg raising was normal. An X-ray showed no pertinent abnormalities. VA clinical records reflect treatment in September 1988 for low back pain. It was reported that the veteran believed that his knee disabilities made his back hurt. Examination of the back was unremarkable. On VA medical examination in January 1989, the veteran gave a one and a half-year history of low back pain that was worse after standing or weight bearing. After the examination, the diagnoses included lumbosacral strain. During a July 1989 RO hearing, the veteran the veteran said that he frequently had lower back pain when his knees gave way and he tried to keep himself from falling. He also said that he would developed back pain after working long hours as a policeman. On evaluation by a chiropractor in March 1992, it was reported that X-rays showed a mild amount of levoscoliosis in the thoracic spine and a moderate amount of leftward antalgia in the lumbar spine. The left hip was significantly higher than the right hip. The diagnosis was lumbosacral strain/sprain and lumbar strain/sprain. The examiner said that there was ample evidence that there could be a causative relationship between the veteran's low back symptoms and his multiple knee surgeries. After VA orthopedic consultation in June 1992, the examiners noted that the veteran had a slight leg length discrepancy with the right leg longer than the left by 3/4 of a centimeter. On VA orthopedic consultation in February 1993, it was noted that a scanogram showed that the veteran's legs were identical in length. After evaluation, the examining physician rendered an impression of chronic low back strain by history only. He opined that there was no connection between the veteran's back and knee disabilities. During VA outpatient treatment in October 1993, it was noted that the veteran was being fitted with a back brace and a shoe lift. In December 1993, it was reported that the veteran's back felt better after he was provided a shoe lift. During an RO hearing in December 1993, the veteran stated that his back would become very painful after prolonged standing. He also said that anything that hurt his knees would also cause his back to become painful. The veteran also said that he wore a back brace that alleviated the pain when he walked. On VA orthopedic examination in February 1994, the examiner diagnosed the veteran as having a subjective history of low back pain with clinical findings of reduced range of motion. This was probably attributable to his knee disorders. It was noted that there were no radiographic findings. Private clinical records reflect evaluation by a chiropractor in August 1995 for complaints of low back pain. It was reported that the veteran had marked degenerative changes in the back. The chiropractor stated that there was a direct correlation between the veteran's prior knee surgeries and the low back pain that he had been experiencing. The chiropractor said that this was highly possible if not probable. During a February 1997 hearing before the undersigned Board member in Washington, D.C., the veteran said that his back brace alleviated pain on walking or bending. He said that several physicians had attributed the back symptoms to the his bilateral knee disability. On an official examination conducted by a private physical therapist in July 1997, it was noted that the veteran preferred to lift from the torso, hips, and back while keeping his knees straight. It was said that this certainly placed increased stress on the lumbar spine during lifting from below the waist. It was also said that this could be a mechanism for accelerated progression of lumbar degenerative joint disease. Under the applicable criteria, secondary service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R.§ 3.310(a). Also the United States Court of Appeals for Veterans Claims (Court) has held that secondary service connection on the basis of aggravation is permitted under 38 C.F.R.§ 3.310, and compensation is payable for that degree of aggravation for a nonservice-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The record indicates that the veteran has long-standing complaints of discomfort in the low back. While a VA examination conducted in 1994 diagnosed only a history of low back pain, a diagnosis of lumbosacral strain has also been rendered by VA physicians and a private chiropractor. In addition, a physical therapist who conducted a recent evaluation of the veteran's orthopedic disabilities on behalf of the VA strongly suggested that his low back disorder was aggravated by his service-connected knee disabilities. Moreover, VA physicians and the veteran's private chiropractor have indicated that the veteran's low back symptomatology is causally related to his service-connected knee disabilities. Since that is the case, secondary service connection for a low back disorder is warranted. ORDER Secondary service connection for a back disorder is granted. REMAND We first address a procedural problem regarding the three other issues noted on the title page of this decision. On April 6, 1999 the veteran's representative at the RO submitted medical reports dated in February 1999 from N. R. Tuck, D.C. and D. W. Clary, M.D. He requested that the RO review these reports before the case was returned to the Board for further appellate consideration. The RO had received this memo and evidence on April 7, 1999, but the claims folder had been returned to the Board on the previous day. On June 18, 1999 the veteran's representative at the Board submitted copies of the same two medical reports and requested that the Board review the reports because the RO jurisdiction was being waived as to this evidence. The Board then proceeded to review this evidence and found that it indicates a worsening of each knee disability. Additionally, Doctor Clary on the second page of his February 1999 report indicates a possible worsening of the veteran's psychiatric disorder. Since that is the case and since these reports post date the most recent VA examination reports by 18 months, further VA examinations are now required. Caffrey v. Brown, 6 Vet. App. 377 (1994). Opinions by the VA General Counsel dated July 1, 1997 (VAOPGCPREC 23-97) and August 14, 1998 (VAOPGCPREC 9-98) have held that separate disability evaluations may be assigned for service-connected knee disability under 38 C.F.R§ 4.71(a), Diagnostic Code 5003 and Diagnostic Code 5257 when a veteran is found to have both arthritis and instability of the knee. The evidence in this case indicates that the veteran's service-connected knee disabilities include traumatic arthritis. Therefore, these opinions by the VA General Counsel are applicable in this case. In view of the foregoing further VA orthopedic and psychiatric examinations are now required. The last three issues on the title page are rewarded for the following action: 1. The veteran should be afforded a VA orthopedic examination to determine the current degree of severity of his service-connected left knee disorder and right knee disorder. All necessary special studies should be performed. The claims folder must be made available to the examining physician so that the pertinent medical records may be studied in detail and the physician must state that the claims folder has been reviewed in his examination report. The examiner should report the pertinent medical complaints, symptoms, and clinical findings, including ranges of left and right knee motion in degrees of flexion and extension. In addition, the examiner should report the existence of subluxation or lateral instability in each knee and state whether such, if present, is slight, moderate, or severe in degree. He must also comment on functional limitation, if any, caused by the veteran's service- connected left knee and right knee disabilities in light of the provisions of 38 C.F.R.§§ 4.40, 4.45 and the Court's decision in DeLuca v. Brown, 8 Vet. App. 202 (1995). The examiner must comment as to the presence or absence of any weakened movement, excess fatigability, pain on undertaking motion, and incoordination caused by the veteran's service- connected left knee disability and right knee disability. If possible, the degree of additional range of motion loss due to any weakened movement, excess fatigability, pain on undertaking motion, or incoordination should be expressed by the examiner as to each knee. 2. The RO should also afford the veteran a special VA psychiatric examination to determine the degree of severity of his service-connected psychiatric disability. The claims folder must be made available to the examiner prior to the examination so that the pertinent clinical records may be reviewed. All clinical findings should be reported in detail and such tests as the examining physician deems necessary should be performed. At the conclusion of the evaluation, the examiner should render an opinion for the record as to the degree that the veteran's psychiatric symptomatology affects his ability to establish and maintain effective and favorable relationships with people (social impairment), and the degree to which they affect his reliability, flexibility, and efficiency levels in performing occupational tasks (industrial impairment). See Massey v. Brown, 7 Vet.App. 204 (1994). The examiner should be furnished a copy of the revised VA General Rating Formula for Mental Disorders (38 C.F.R. § 4.130, effective November 7, 1996), and on examination of the veteran, comment as to the presence or absence of each symptom and clinical finding specified therein from zero percent to 100 percent and if present, the frequency and/or degree(s) of severity thereof. 3 Thereafter, the RO should review the report of the above orthopedic examination to ensure that the examiner has complied with the instructions of this remand. Then, the RO should readjudicate the veteran's claim for increased evaluations for his service-connected knee disorders with due consideration given to the opinions of the VA General Counsel dated July 1, 1997 (VAOPGCPREC 23-97) and August 14, 1998 (VAOPGCPREC 9-98) and to the Court's holding in DeLuca. 4 The RO should also review the evidence and adjudicate the issue of an increased rating for the veteran's service-connected psychiatric disability. In adjudicating this issue, the RO should assign a percentage disability rating from either (a) the VA's Schedule for Rating Mental Disorders (38 C.F.R. § 4.132, as in effect prior to November 7, 1996), or (b) the revised VA General Rating Formula for Mental Disorders (38 C.F.R. § 4.130, effective November 7, 1996), whichever is more favorable to the veteran. Karnas v. Derwinski, 1 Vet. App. 308(1991). If one or more of these remanded issues are denied, the veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. No action is required of the veteran until he is so informed by the RO. The purpose of this remand is to obtain additional clarifying clinical evidence, to comply with precedent opinions of the General Counsel and to comply with a precedent decision of the Court. This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. BRUCE E. HYMAN Member, Board of Veterans' Appeals