Citation Nr: 0007941 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 98-14 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for low back disability, claimed as secondary to left knee chondromalacia and torn medial meniscus, status post arthroscopy. 2. Entitlement to a rating in excess of 10 percent for service-connected left knee chondromalacia and torn medial meniscus, status post arthroscopy. 3. Entitlement to an extension of a temporary total rating under the provisions of 38 C.F.R. § 4.30 for a period of convalescence following knee surgery. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Dennis F. Chiappetta, Counsel INTRODUCTION The veteran served on active duty from February 1990 to August 1994, including service in the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied, as not well grounded, the veteran's claim for service connection for low back disability, which was claimed as secondary to his service-connected left knee chondromalacia and torn medial meniscus, status post arthroscopy (left knee disability). The veteran timely appealed this determination to the Board. In August 1999, the Board remanded the issue of secondary service connection for the veteran's low back problems for additional development to include an orthopedic examination. On remand, the RO continued the denial of the claim; hence, that issue has been returned to the Board for further appellate consideration. In the August 1998 remand, the Board also pointed out that in the VA Form 9 dated in July 1998 and filed in August 1998, the veteran expressed disagreement with a July 1998 RO rating decision which denied the veteran's claims for a rating in excess of 10 percent for his service-connected left knee disorder and for an extension of a temporary total rating assigned, pursuant to 38 C.F.R. § 4.30, following an operation on the veteran's left knee. The Board directed that, on remand, the RO furnish to the veteran and his representative a statement of the case on those issues; this action was accomplished in September 1999. As the veteran perfected his appeal as to those issues in October 1999, those issues are likewise now before the Board for appellate consideration. REMAND The record shows that the veteran injured his left knee during service and had arthroscopy in 1993. In March 1995, the RO granted service connection and assigned a 10 percent disability rating for chondromalacia, left knee, status post arthroscopy. Following another injury to that left knee, the veteran underwent a second operation in May 1995. He submitted a claim for an increased rating in June 1997. While the RO, in July 1997, granted a temporary total rating under 38 C.F.R. § 3.40 for the period of convalescence following the surgery, an increased rating was never granted. The veteran has since asserted a claim for an extension for his temporary total rating and a claim for service connection for a low back disorder as secondary to his left knee disorder. Specifically regards the veteran's claim for service connection for a low back disorder, the Board notes that service connection may be granted for disability resulting from an injury or disease that was incurred in or aggravated by active service, or, on a secondary basis, for disability that is proximately due to or the result of a service- connected condition. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303(a), 3.310(a) (1999). Section 3.310(a) also has been interpreted to permit service connection for the degree of impairment resulting from aggravation of a nonservice-connected condition by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). When the Board last reviewed this claim, it was noted that in a July 1997 medical report, the veteran's treating orthopedist, Dr. Theodore M. Pitts, opined that the veteran's "back condition," subsequently diagnosed as lumbar discogenic pain with a possible herniated disc, was due to his left knee disability. In addition, a review of the private medical evidence shows substantial low back pathology, including muscle spasm. The Board also noted that in a May 1998 VA examination report, the VA examiner stated, "In my opinion, the [veteran's] back problem is in no way related to the left knee injury that he had while in service." In support of this conclusion, the examiner reasoned, "The patient may well have developed back pain secondary to the April 1997 injury, but at the time of the examination is within normal limits." However, a review of the examination report shows that the examiner diagnosed the veteran as having low back pain with degenerative joint disease, which was confirmed by X-ray. It was also noted that the examiner had indicated that the veteran's claims folder had not been made available for his review. Under these circumstances, the Board found that further medical evaluation of the veteran was required in order to clarify the etiology of the veteran's low back disability before a decision concerning his appeal could be made. The claim was remanded in August 1999. When previously remanding this claim, the Board specifically requested, among other things, that the veteran be scheduled for a VA orthopedic examination during which all necessary tests and clinical studies should be accomplished, and all clinical findings be reported in detail. In addition, the Board requested that the physician be specifically asked to offer opinions as to the following: (a) whether it is at least as likely as not that the veteran's low back disability is etiologically related to his service-connected left knee disability; if there is no etiological relationship, then (b) whether the service-connected left knee disability aggravates the low back condition; and, if so, (c) the level of disability that is attributable to such aggravation. In accordance with the remand, the veteran underwent VA examination of the spine in October 1999. The examiner diagnosed low back pain, lumbosacral strain. The examiner offered his belief that "there is a causal relationship between the veteran's left knee condition and his low back condition." However, he explained that "the back condition came on after [the veteran's] second knee injury which cannot be definitely causally related to his service-connected knee condition" and concluded that "the back condition . . . is not causally related to his service-connected left knee condition." Contrary to the Board's instructions, however, the examiner did not express an opinion as to whether (and, if so, to what extent) the veteran's service-connected left knee disorder aggravated the low back condition. Subsequently, the Veterans Service Center Manager at the VARO Adjudication Division attempted to cure this deficiency with a November 1999 letter specifically asking for a medical opinion regarding the question of aggravation. In response, a VA physician who did not examine the veteran indicated that, after review of the claims file and the prior examination report, he was "unable to comment further on any aggravation of the back injury or additional disability without pure speculation." Thus, the Board finds the prior remand has not fully been complied with. The Court has specifically mandated that a remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. 268 (1998). The Court has indicated, moreover, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Under these circumstances, further remand is warranted so that the RO can schedule the veteran to undergo another orthopedic examination to obtain, based upon examination of the veteran and review of the claims file, the requested medical opinion concerning the relationship, if any, between the veteran's service-connected knee disorder and low back disability, to include on the basis of causation and aggravation. The Board also finds that the claims for an increased rating for the left knee and for an extension to his temporary total rating cannot now be decided without additional medical findings. The Board notes that the VA examination reports and the medical opinion submitted in November 1999 appear to draw a distinction between the veteran's service-connected left knee disorder and his subsequent injury in 1995. However, the medical evidence does not clearly reflect whether the current level of impairment associated with the left knee disability is due to the veteran's service- connected left knee disorder, his subsequent left knee injury, or some combination of the two. The Board is aware that if the manifestations of a service-connected disability cannot be separated from the manifestations of a nonservice- connected disability, all manifestations must be attributed to the service-connected condition. Mittleider v. West, 11 Vet. App. 181 (1998). However, no VA examiner has ever addressed this question. Hence, on remand, the orthopedic examiner should offer an opinion as to the relationship, if any, between the service-connected left knee disability and the subsequent left knee injury; and, if deemed unrelated, whether it is possible to distinguish the effects of the service-connected left knee disability from any other nonservice-connected left knee disability. The answer to these questions may well bear upon resolution of all the issues on appeal. Prior to having the veteran undergo any further examination, however, the RO should obtain and associate with the claims file all VA and private outstanding records of pertinent medical treatment of the veteran so that the examiner's review of the veteran's documented medical history can be a fully informed one. The Board would emphasize that it is particularly important that the RO associate with the claims file all outstanding records of any VA treatment, since these documents are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Board is mindful of the period of time that this case has been in appellate status, and regrets that a further remand of these matters will also further delay the Board's decision in this appeal. However, such action is necessary to ensure that all due process requirements are met. Accordingly, these matters are hereby REMANDED to the RO for the following action: 1. The RO should undertake all appropriate action to obtain and associate with the claims file all outstanding records of pertinent medical treatment of the veteran from private sources identified in the prior remand, and any other source(s) or facility(ies) identified by the veteran. However, if any requested records are not available, or a search otherwise yields negative results, that fact should clearly be documented in the claims file. 2. The RO should schedule the veteran to undergo orthopedic examination of his left knee and low back. The claims folder, to include complete copies of this and the Board's August 1999 remands, must be made available to and be reviewed by the examiner in conjunction with the examination, and any examination report should reflect consideration of the veteran's pertinent medical history. All current tests/studies deemed necessary by the examiner (to include range of motion studies, expressed in degrees) should be accomplished, and all clinical findings should be reported in detail. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the left knee. The physician should indicate whether, and to what extent, the veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups. To the extent possible, the examiner should express such functional loss in terms of additional degrees of limited motion. Following examination of the veteran and review of the veteran's claims file, the examiner should offer an opinion as to the relationship, if any, between the service-connected left knee disorder and the post-service left knee injury. If deemed unrelated, the examiner should opine whether the symptoms attributable to the veteran's service-connected left knee disorder can be distinguished from those attributable to the nonservice- connected left knee injury. If so, the examiner should identify the symptoms attributable to each, and provide an assessment of the severity of each condition. The examiner also should offer specific opinion as to the relationship, if any, between the veteran's service-connected left knee disorder and any low back disorder currently present. Specifically, as was requested in the prior remand, the physician must address the following: a) whether it is at least as likely as not that the veteran's low back disability is etiologically related to his service-connected left knee disability; if there is no etiological relationship, then (b) whether it is at least as likely as not that the service- connected left knee disability aggravates the low back condition; and, if so, (c) the extent of additional low back impairment that is attributable to such aggravation. If the examiner is unable to provide answer any of the questions posed with any degree of medical certainty, he should so state and explain why. Otherwise, the examiner must provide the complete rationale underlying any conclusions drawn or opinions expressed, citing, where necessary, to specific evidence in the record. The report must be typewritten. 3. To help avoid future remand, the RO should ensure that all requested development has been completed (to the extent possible) in compliance with this REMAND. See Stegall, supra. If any requested action is not undertaken, or is deficient in any manner, appropriate corrective action should be undertaken. 4. After completion of the foregoing, and any other development deemed warranted by the record, the RO should adjudicate the claims on appeal on the basis of all relevant evidence and all pertinent legal authority. In adjudicating the claim for an increased rating for his service-connected left knee disability, the RO should specifically address whether it is possible to separate the effects of the service-connected left knee condition from the impairment resulting from a post-service left knee injury (see Mittleider, cited to above), as well as the extent of functional loss due to pain and other factors attributable to the service-connected disability (see 38 C.F.R. §§ 4.40 and 4.45, and DeLuca v. Brown, 8 Vet. App. 202 (1995)). In adjudicating the claim for secondary service connection for a low back disability, the RO must address whether the service-connected left knee disability has caused or aggravated low back disability, consistent with 38 C.F.R. § 3.310(a) and Allen, cited to above. The RO must provide adequate reasons and bases for its decisions, citing to all governing legal authority and precedent, and addressing all issues and concerns that were noted in this REMAND. 5. If any benefit sought is not granted, the veteran and his representative must be furnished a supplemental statement of the case and given an opportunity to submit written or other argument in response. The case should then be returned to the Board for further appellate consideration. The purpose of this remand is accomplished additional development and adjudication, and by this action, the Board intimates no opinion, either favorable or unfavorable, as to the ultimate disposition warranted. The veteran need take no action until otherwise notified, but he and/or his representative may furnish additional evidence and argument within the appropriate time frame. Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). These claims 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. JACQUELINE E. MONROE Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).