Citation Nr: 0006977 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 98-09 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for low back disorder, as secondary to service-connected total left knee replacement and right knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. P. Simpson, Associate Counsel INTRODUCTION The appellant served on active duty from June 1966 to November 1968. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a March 1998 rating decision of the Manchester, New Hampshire, Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied service connection for low back disorder as secondary to service-connected total left knee replacement. In the rating decision on appeal, the RO denied service connection for right knee disorder as secondary to service- connected total left knee replacement. The appellant perfected an appeal as to that issue. However, in a January 1999 rating decision, the RO granted service connection for right knee disorder and assigned a 10 percent disability evaluation. The appellant did not file a notice of disagreement (NOD) as to the grant of service connection for the right knee disorder, and thus that issue is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (NOD following denial of a particular claim for service connection cannot be construed as an NOD following the granting of service connection for that claim). The Board notes that in an undated written statement from the veteran received at the Board on June 23, 1999, the veteran seemed to disagree with the initial rating assigned for the right knee disability. However, that correspondence cannot constitute a valid NOD because it was received by the Board and not the RO. Thus, it did not serve to initiate appellate review of the claim. See 38 U.S.C.A. § 7105(b)(1) (West 1991); Beyrle v. Brown, 9 Vet. App. 24, 28 (1996); Zevalkink v. Brown, 6 Vet. App. 483, 489 (1994) (NODs must generally be filed with the RO). It appears from the June 23, 1999, written statement that the veteran wishes to pursue additional claims for service connection or increased ratings for lymph nodes, eyes, right and left knees, passive-aggressive personality disorder, and a respiratory disorder. These claims have not been developed for appellate review and are referred to the RO for appropriate action. FINDING OF FACT The appellant has brought forth competent evidence of a nexus between the diagnosis of spondylolisthesis and his service- connected total left knee replacement and right knee disorder. CONCLUSION OF LAW The claim for service connection for low back disorder, to include spondylolisthesis, as secondary to service-connected total left knee replacement and right knee disorder, is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.310(a) (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant claims that service connection is warranted for his back, stating that he developed a back problem due to his service-connected total left knee replacement. The appellant has brought forth competent evidence of current diagnosis of spondylolisthesis. An April 1999 letter from Dr. Robert H. Arbuckle stated the following: . . . I can't state [if] there is any relationship with [the appellant's] knees and the problems that subsequently developed in his back. I don't know for sure, but I'm assuming that his spondylolisthesis was on a congenital basis and not acquired, but it is possible it was acquired. (Emphasis added.) The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court"). has held that service connection is warranted where the evidence shows that a chronic disability or disorder has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310 (1999); Allen v. Brown, 7 Vet. App. 439 (1995). In making a claim for service connection, the appellant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). A well- grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim for secondary service connection requires evidence of a current disability as provided by a medical diagnosis, a service-connected disease or injury, and competent evidence providing a nexus between the two. Wallin v. West, 11 Vet. App. 509, 512 (1998); 38 C.F.R. § 3.310(a) (1999). When determining whether a claim is well grounded, the evidence submitted in support of the claim must be accepted as true. Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995) (citing King v. Brown, 5 Vet. App. 19, 21 (1993)). Dr. Arbuckle stated in his April 1999 letter that it was "possible" that the appellant's diagnosis of spondylolisthesis was acquired. The implication in his letter is that it was possibly acquired due to the service- connected total left knee replacement and right knee disorder. Accepting Dr. Arbuckle's statement as true, the Board finds that such statement is sufficient to establish a well-grounded claim for service connection for low back disorder, to include spondylolisthesis, as secondary to service-connected total left knee replacement and right knee disorder. Caluza v. Brown, 7 Vet. App. 498 (1995) aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.310(a) (1999). ORDER The claim for service connection for low back disorder, to include spondylolisthesis, as secondary to service-connected total left knee replacement and right knee disorder, is well grounded. REMAND Because the appellant has submitted a well-grounded claim for service connection for low back disorder, to include spondylolisthesis, as secondary to service-connected total left knee replacement and right knee disorder, the duty to assist attaches. 38 U.S.C.A. § 5107(a) (West 1991). The Board finds that additional development is needed prior to adjudicating the claim for service connection for low back disorder, to include spondylolisthesis, as secondary to service-connected total left knee replacement and right knee disorder. The record indicates that the veteran is receiving Social Security Administration (SSA) disability benefits for his back problems. Records pertaining to the award of such benefits by the SSA have not been associated with the record certified for appellate review. Such records may be of significant probative value in determining whether service connection is warranted. The Court held in Lind v. Principi, 3 Vet. App. 493, 494 (1992), that the VA should attempt to obtain records from other federal agencies, including the SSA, when the VA has notice of the existence of such records. See also Murincsak v. Derwinski, 2 Vet. App. 363, 370-372 (1992). Thus, the RO must request complete copies of the SSA records utilized in awarding the appellant disability benefits. Under VA regulations, there is a 90-day period - "following mailing of notice to [an appellant and his or her representative] that an appeal has been certified to the Board for appellate review and that the appellate record has been transferred to the Board, or until the date the appellate decision is promulgated by the Board . . . whichever comes first" -- during which an appellant may submit additional evidence to the Board. 38 C.F.R. § 20.1304(a) (1999). If additional evidence is submitted during this time, the Board reviews it in light of the claims on appeal and decides whether review by the RO in the first instance is required. 38 C.F.R. § 20.1304(c) (1999). Any pertinent evidence accepted at the Board without the benefit of RO consideration must be accompanied by a written waiver. Id. In this case, the veteran was notified of the certification and transfer of the appellate record by letter dated April 6, 1999. 38 C.F.R. §§ 19.36, 20.1304(a) (1999). The appellant's representative submitted additional, pertinent evidence to the Board in June 1999. This evidence was received less than ninety days after the certification of appeal and transfer of records to the Board. The appellant's representative indicated that consideration of the evidence by the RO was waived. The originating agency should take the aforementioned evidence into consideration when readjudicating the claim. Accordingly, the case is hereby REMANDED to the RO for the following action: 1. The RO should ask the veteran to provide the RO with information regarding any evidence of current or past treatment for his low back disorder that has not already been made part of the record, and should assist him in obtaining such evidence following the procedures set forth in 38 C.F.R. § 3.159 (1999). After obtaining any necessary release, the RO should make an effort to obtain copies of relevant clinical records from R. H. Arbuckle, M.D., 85 Spring St., Suite 202, Laconia, NH 03246-3140 and from Dr. Robert Boyd. In addition, the RO should make an effort to ensure that all relevant records of VA treatment have been obtained for review. Should its efforts to obtain evidence prove unsuccessful for any reason which the veteran could rectify, the RO should notify the veteran and advise him that the ultimate responsibility for furnishing evidence rests with the claimant. The veteran should be given a reasonable opportunity to respond to the RO's communications, and any additional evidence received should be associated with the claims folder. 2. The RO should obtain copies of all administrative and medical records compiled and/or utilized by the Social Security Administration in connection with an award of disability benefits to the appellant. The RO should proceed with all reasonable follow-up referrals that may be indicated by the inquiry. All attempts to obtain records which are ultimately not obtained should be documented. 3. Once the private medical records have been associated with the claims file, the RO should forward the appellant's claims file to an appropriate VA physician for a review of the claims file and an opinion as to whether it is as likely as not that a back disorder was caused or aggravated by the service-connected knee disorders. If the physician believes that a physical examination is necessary to make such a determination, the RO should schedule the appellant to undergo a physical examination. 4. If the appellant is scheduled to undergo a physical examination, the RO is advised to ensure compliance with examination reporting requirements. Pursuant to 38 C.F.R. § 3.655 (1999), when the claimant without good cause fails to report for examination in connection with a claim for service connection, other than an original claim, the claim will be denied. However, the Secretary must show a lack of good cause for failing to report. Further, VA has a duty to fully inform the veteran of the consequences of the failure to undergo the scheduled examination. Reference is made to M21-1, Part IV, paragraph 28.09(b)(3). The regional office must comply with all notification requirements regarding the duty to report and the failure to report for examination. This serves as notification of the regulation. 5. After the above actions have been completed, the RO must then re-adjudicate the veteran's claim, to include consideration of the holding of the Court in Allen v. Brown, 7 Vet. App. 439 (1995). If any of the benefits sought remain denied, a supplemental statement of the case (SSOC) should be issued. The case should be returned to the Board after compliance with all requisite appellate procedures. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court 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. M. C. GRAHAM Acting Member, Board of Veterans' Appeals