Citation Nr: 1800328 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 11-05 409A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a low back disability, to include as secondary to service-connected disability. 2. Entitlement to a disability rating in excess of 30 percent for left knee degenerative joint disease (DJD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife. ATTORNEY FOR THE BOARD Michael Wilson, Counsel INTRODUCTION The Veteran served in the Army National Guard from January 1989 to October 1990, to include several periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA), and from August 1994 to July 1996. He served on active duty in the Army from October 1990 to August 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2010 and October 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In the October 2010 rating decision, the RO, in relevant part, granted entitlement to service connection for left knee DJD, and for left knee laxity, assigning each disability a 10 percent disability rating, effective August 31, 2010. In a January 2012 statement, the Veteran withdrew others claims that he had previously appealed, including a claim for a higher initial disability rating for left knee laxity. In a February 2012 rating decision, the RO increased the disability rating for left knee DJD to 30 percent, effective January 5, 2012. The Veteran and his wife testified at a hearing before the undersigned in April 2013. A hearing transcript is of record. The Board previously remanded the issues on appeal for further evidentiary development in November 2014 and November 2015. In the November 2014 decision, the Board additionally denied entitlement to a disability rating higher than 10 percent for left knee DJD for that part of the appeal period prior to January 5, 2012. The Board also disposed of other appellate claims in the November 2014 and November 2015 decisions. In a March 2016 rating decision, the Agency of Original Jurisdiction (AOJ) granted a separate 10 percent disability rating for left knee limitation of flexion, effective January 14, 2016. The appeal is again REMANDED to AOJ. VA will notify the Veteran if further action is required on his part. REMAND The Board has remanded the Veteran's service connection claim for a low back disability in order to obtain an adequate etiology opinion with respect to whether the disability was incurred during service or whether it has been secondarily caused or aggravated by service-connected disability. The Board has specifically instructed VA examiners to consider statements made by the Veteran and his wife with respect to a continuity of low back pain since the Veteran's separation from service in 1994. Notably, in the November 2014 remand of this claim, the Board specifically requested that the VA examiner obtain a history of the Veteran's symptoms as observed by him and his wife since service. The examination reports of record provide no indication that such history was expressly obtained. Following the November 2015 remand of this claim, a new VA opinion was obtained in March 2016. The VA examiner determined that he would have to resort to complete speculation in order to provide an opinion as to whether the Veteran's back disability was solely due to or a result of service. The examiner indicated that he could not provide such opinion due to a lack of medical evidence of treatment for the 17-year period following the Veteran's separation from service and because the Veteran and his wife have, to the contrary, offered testimony indicating ongoing symptoms. The examiner did not indicate why credible statements from the Veteran and his wife, together with the medical evidence of record, could not be relied upon to provide the requisite medical opinion. Cf. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The examiner additionally expressed concern in the examination report with an apparent lack of mention of "many other post service issues that can cause" the Veteran's back complaints. Notably, however, the Board is not necessarily concerned with how other post-service issues may possibly have affected the Veteran's current back disability, except as to the likelihood that such issues, and not in-service disease or injury, were the cause of the Veteran's current back disability. Rather, the primary concern to the Board is obtaining an opinion merely as to whether it is at least as likely as not that a current back disability was incurred during or as a result of his active service. Cf. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). The Board additionally notes that the VA examiner appeared to rely on a statement made by the Veteran's representative during the April 2013 Board hearing for the proposition that there was a 17-year absence of evidence of low back disability in the record, and that such absence of evidence of treatment in the record was another reason an adequate medical opinion could not be provided. The Board notes, however, that such a gap of medical evidence of low back pain does not exist in the record, and is therefore, an inaccurate factual premise. The medical evidence indicates that the Veteran has fairly consistently complained of back pain since his separation from service in August 1994. Such complaints are apparent in records dated in March 2000, although the only noted diagnosis was gastroenteritis; in September 2002, including during VA examination; in multiple records dated in 2004; in multiple records dated in 2007, including during VA examination in December 2007, at which time the Veteran was noted to have chronic low back pain that had been stable for years; and up through the date he filed his claim in March 2010. The examiner additionally concluded that for the same reasons noted above, it would be speculative to determine the likelihood that a knee disability caused or aggravated his low back disability. The examiner indicated that this was also a result of numerous joint/spine complaints. The examiner did not, however, clearly delineate why an opinion with respect to whether current back disability was caused or aggravated by a service-connected knee disability could not be provided. Based on the foregoing deficiencies, remand is in order to afford the Veteran a new VA spine examination. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). With respect to the issue of entitlement to a higher disability rating for service-connected left knee disability, the Board remanded the appeal in November 2015 in order to afford the Veteran a new VA examination to determine the current nature and severity of the disability. In the remand, the Board specifically requested that a VA examiner determine whether and to what extent the Veteran had additional range of motion loss due pain on use, including during flare-ups; weakened movement; excess fatigability; or incoordination, in accordance with relevant case law. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45 (2017) During VA examination in January 2016, the examiner noted that the Veteran had flare-ups of knee disability, during which times he could hardly walk. The examiner concluded that pain and weakness could significantly limit the Veteran's functional ability during flare-ups, or when the joint was used repeatedly over a period of time, and that it was feasible that this would occur. The examiner determined, however, that it was not possible to determine the actual degrees of additional range of motion loss due to pain and weakness on use, fatigability, or incoordination during flare-ups, as an examiner must be present to objectively and clearly determine these additional losses. The examiner's determinations are contrary to applicable case law and laws and regulations. See DeLuca, 8 Vet. App. 202; 38 C.F.R. §§ 4.40, 4.45 (2017); see also Layno v. Brown, 6 Vet. App. 465 (1994). The examiner otherwise indicated that he could not determine whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups without mere speculation, without sufficient basis. See Sharp v. Shulkin, 29 Vet. App. 26, 34-37 (2017) (holding that remand was required where a VA examiner had not elicited a description of functional limitations during flare-ups and it was not clear whether the examiner's inability to opine on that matter was the result of all procurable medical evidence or an individual inability to provide the requested opinion). Additionally, the United States Court of Appeals for Veterans Claims (Court) provided a precedential interpretation of the final sentence of 38 C.F.R. § 4.59, and held that the sentence created a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Board interprets the Court's decision as requiring that VA examinations must include range of motion testing of the pertinent joint in active motion, passive motion, and in weight-bearing and nonweight-bearing. In spite of a request for this information in the November 2015 remand, the January 2016 VA examination report did not provide such range of motion testing results. Cf. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, this appeal case is REMANDED for the following action: 1. Schedule the Veteran for a new VA spine examination with a different VA examiner from the one who provided the March 2016 opinion. The examiner must review the claims file. All necessary studies and tests should be conducted. The examiner must obtain a history of the Veteran's symptoms as observed by him and his wife since his separation from service. The examiner must provide opinions as to the following: A) Is it at least as likely as not (50 percent or greater probability) that a currently diagnosed lumbar spine disability had its onset during active service or is related to any in-service disease, event, or injury? In providing this opinion, the examiner should specifically address reports of ongoing back pain due to injury in the Veteran's service treatment records. B) If it is not at least as likely as not that current lumbar spine disability had its onset during active service or is related to any in-service disease, event, or injury, is it at least as likely as not (50 percent or greater probability) that a current lumbar spine disability is caused by service-connected right and/or left knee disability? C) If it is not at least as likely as not that current lumbar spine disability is caused by service-connected knee disability, is it at least as likely as not (50 percent or greater probability) that a current lumbar spine disability has been aggravated by service-connected right and/or left knee disability? (If aggravation is found, the examiner should attempt to establish a baseline level of severity of the lumbar spine disability prior to aggravation by service-connected knee disability.) The examiner must address all directives listed herein and provide reasons for all opinions, addressing the relevant medical and the lay assertions provided by the Veteran and his wife. Absent such, the examination report will be deemed inadequate. 2. Schedule the Veteran for a new VA orthopedic examination of his left knee. The examiner must review the claims file. All necessary studies and tests should be conducted. The examiner must: A) Report the Veteran's ranges of left knee motion in degrees in passive motion, active motion, and in weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she must clearly explain why that is so. B) Given the Veteran's prior reports of flare-ups of left knee disability, determine the extent the left knee disability is manifested by weakened movement, excess fatigability, incoordination, or pain due to flare-ups or when the left knee is used repeatedly over a period of time. This determination should be made in terms of the degree of additional range-of-motion loss. These determinations are required by VA regulations as interpreted by courts. The examiner is advised that the Veteran is competent to describe his range of motion during flare-ups. The examiner must address all directives listed herein and provide reasons for all opinions, addressing the relevant medical and lay evidence. Absent such, the examination report will be deemed inadequate. 3. If the benefits sought on appeal are not granted in full, issue a supplemental statement of the case; and return the appeal to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).