BVA9505146 DOCKET NO. 88-53 726 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE 1. Entitlement to service connection for a back disability, including arthritis, on a secondary basis. 2. Entitlement to service connection for post-traumatic stress disorder. 3. Entitlement to a total rating based on individual unemployability due to service-connected disability for the period from January 1988 to September 1989. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The veteran served on active duty from June 1964 to May 1968 and from July 1979 to July 1983. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from decisions from the Regional Office (RO). By rating action dated in February 1987, the RO denied the veteran's claim of entitlement to service connection for a back disability. In a rating decision of July 1988, the RO denied a total rating based on individual unemployability due to service- connected disability. When this case was before the Board in April 1989 and again in February 1992, it was remanded for additional development. By rating action dated in September 1992, the RO denied service connection for post-traumatic stress disorder (PTSD). In October 1993, the Board again remanded the case to the RO for additional development. It is noted that during the hearing conducted at the Board in June 1993, the veteran withdrew his claim for a temporary total rating under the provisions of 38 C.F.R. § 4.30 (1994), subsequent to March 1988. Accordingly, this decision will be limited to the issues noted on the preceding page. Moreover, the limitation of the issue of entitlement to a total rating based upon individual unemployability to a specific time period is based upon the fact that the veteran has reported gainful employment since September 1989. REMAND The initial question before the Board is whether the veteran has submitted a well-grounded claim as required by 38 U.S.C.A. § 5107. The United States Court of Veterans Appeals (the Court) has held that a well-grounded claim is one which is plausible, that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In addition, in Tirpak v. Derwinski, 2 Vet.App. 609 (1992), the Court held that a claim must be accompanied by evidence (emphasis in original). In this case, the medical records and the veteran's statements, including his testimony at several hearings, concerning the onset of his back disability and the severity of his service-connected disabilities are sufficient to conclude that his claims for service connection for a back disorder and for a total rating based on individual unemployability due to service-connected disability are well-grounded. Proscelle v. Derwinski, 2 Vet.App. 629 (1991); King v. Brown, 5 Vet.App. 19 (1993). The veteran has been granted service connection for five disabilities, including internal derangement of the left knee with traumatic arthritis, evaluated as 30 percent disabling, and for chondromalacia of the right knee, with traumatic arthritis, evaluated as 20 percent disabling. He has argued that he developed a back disability secondary to his service-connected bilateral knee disorders. In this regard, the Board notes that when he was examined by the Department of Veterans Affairs (VA) in November 1989, the diagnosis was degenerative disc, L5-S1, with arthritis. The examiner concluded that the veteran's back disorder was related to his knee condition. The same physician examined the veteran in August 1990, and commented that the veteran's spondylolisthesis was not related to his knee condition. The diagnosis at that time was Grade I spondylolisthesis. Finally, the Board points out that the veteran has submitted a statement, dated in June 1993, from a private physician, in which it is concluded that "knowing that the quads, hamstrings and iliopsoas are involved in stabilizing the back and legs, it seems reasonable that arthritis could cause alterations in stance and gait and could alter his back support and potentiate back problems." On reviewing these opinions, the Board finds that the private physician's opinion is phrased in the type of "may or may not" or "could have been" language that the Court has held would not make a claim well grounded on the determinative question of medical causation or diagnosis. Tirpak, 2 Vet.App. at 611; Warren v. Brown, 6 Vet.App. 4, 4 (1994). Further, given the fact that the record shows same VA examiner expressed contradictory opinions, with the most recent opinion against the veteran's claim, the evidence on the determinative issue of medical causation is not in equipoise. The Board reluctantly concludes, however, that the confusion on this issue merits further development in an effort to resolve the matter equitably. The Board also notes that the record shows that the veteran was in receipt of Social Security (SSA) benefits for a period of time from July 1987 to August 1990. Where VA has actual notice that the appellant is receiving disability benefits from the SSA, the duty to assist requires VA to obtain a copy of the decision and the supporting medical records upon which the award was based that are relevant to issues before the Board. Murincsak v. Derwinski, 2 Vet.App. 363 (1992). The decision of the SSA is of record, and clearly refers to examination reports probative of the impairments of the veteran's knees, as well as the appellant's capacity for gainful employment. It is not clear that all the medical records reviewed by the SSA have been associated with the claims folder, and these additional records may contain information that is relevant and probative of the issues on appeal. In light of the actions requested below, the Board will defer consideration of the issue of entitlement to service connection for PTSD. Accordingly, the case is REMANDED to the RO for action as follows: 1. The RO should obtain all the medical records referred to in the SSA decision of August 1990 which have not already been procured. The attention of the SSA should be respectfully invited to 38 U.S.C.A. § 5106 (West 1991). 2. The veteran should be afforded a VA examination by a specialist in orthopedics who has not previously examined him, if available, to determine the nature and extent of his back disability. Following a review of the complete record in this case and the clinical evaluation, the examiner is to be requested to furnish an opinion concerning whether it is as least as likely as not that the veteran's back disability was caused by his service-connected bilateral knee disorders. In addressing this question, the examiner should comment on what role, if any, any intercurrent event post service may have played in the development of the back disorder. All necessary tests should be performed. The claims folder must be made available to the examiner in conjunction with the examination. Following completion of the above, the RO should review the evidence and determine whether the veteran's claim may now be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case, and the case should then be returned to the Board for further appellate consideration. By this action the Board intimates no opinion, legal or factual, as to the ultimate determination warranted. RICHARD B. FRANK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).