Citation Nr: 18141027 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 06-25 412 DATE: October 9, 2018 ORDER Service connection for a low back disability is denied. REMANDED A rating in excess of 10 percent for left knee degenerative osteoarthrosis is remanded. A rating in excess of 20 percent prior to May 17, 2018, and in excess of 30 percent for residuals, left knee injury, status post meniscectomy is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s low back disability is neither proximately due to nor aggravated beyond its natural progression by his service-connected left knee disabilities, and is not otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1980 to March 1984. The Veteran testified before the undersigned Veterans Law Judge during a May 2015 hearing. This matter is on appeal from October 2004, October 2005, and October 2009 rating decisions. The Board of Veterans’ Appeals (Board) most recently remanded for further development in July 2017. The Veteran raised the issue of entitlement to TDIU during the course of the appeal period, to include his representative’s September 2018 Brief which noted the Veteran received Social Security benefits as a result of his osteoarthritis and psychiatric disorders. As such, the issue is considered part and parcel with the Veteran’s pending claim for a higher left knee disability rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Service connection for a low back disability The Veteran contends that his low back disability is secondary to his service-connected disability of the left knee. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or was aggravated beyond its natural progress by his service-connected left knee disability. The Board concludes that, while the Veteran has a current diagnosis of age-related lumbar degenerative disc disease(DDD)/degenerative joint disease(DJD), the preponderance of the evidence is against finding that the Veteran’s low back disability is proximately due to or the result of, or aggravated beyond its natural progression by his service-connected left knee disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The May 2018 VA examiner opined that the Veteran’s low back disability is instead due to age. The rationale was acute low back strains had resolved. There was insufficient evidence to support onset of a chronic unresolved low back condition due to the service-connected left knee disability. The examiner noted the Veteran had documented access to multiple VA medical facilities 2001 to present, had comprehensive pain evaluations, was allowed the opportunity to report all painful areas, and most encounters were silent to chronic unresolved low back pain. The examiner considered the Veteran’s testimony that low back pain was unresolved since 2001; however, the examiner further noted that everyone with chronic or recurrent back pain had a first episode of back pain, but it does not necessarily make the initial episode or episodes related to the chronic condition. The examiner explained that while back sprain or strain involves the muscles and ligaments (soft tissues) of the spinal region, spondylosis is a degenerative process involving the discs and vertebral bodies. One is not the cause of, or related to, the other. The examiner further explained that individuals remember an episode “where it all began,” despite the lack of a medical nexus. The examiner noted the Veteran’s current lumbar spine DDD/DJD was clinically better than expected for age based on his history of chronic substance abuse. The examiner also noted the “pelvic” pain was most likely part and parcel age and cocaine related bilateral hip degenerative disease, less likely as not proximately due to lumbar spine pathology. The examiner noted there were no other chronic low back conditions or diagnoses identified. While the Veteran believes his low-back disability is proximately due to or the result of, or aggravated beyond its natural progression by his service-connected left knee disability, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the May 2018 VA examiner’s opinion. Service connection may also be granted on a direct basis, but here the preponderance of the evidence is also against finding that the Veteran’s low back disability is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran is competent to report that he suffered a lumbar strain in service, and his reports are credible and entitled to probative weight. His reports have been internally consistent, and are consistent with other evidence of record, including the examiner’s finding of resolved lumbar strain. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the May 2018 VA examiner opined that the Veteran’s low back disability is not related to a low back strain in service. The examiner noted that the acute lumbar strain in service resolved without residuals or recurrence. The rationale was that while back sprain or strain involves the muscles and ligaments (soft tissues) of the spinal region, spondylosis is a degenerative process involving the discs and vertebral bodies. One is not the cause of, or related to, the other. The examiner further explained that individuals remember an episode “where it all began,” despite the lack of a medical nexus. The examiner noted the Veteran’s current lumbar spine DDD/DJD was clinically better than expected for age based on his history of chronic substance abuse. The examiner also noted the “pelvic” pain was most likely part and parcel age and cocaine related bilateral hip degenerative disease, less likely as not proximately due to lumbar spine pathology. The examiner noted there were no other chronic low back conditions or diagnoses identified. While the Veteran believes his low-back disability is related to an in-service injury, event, or disease, including a lumbar strain, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the May 2018 VA examiner’s opinion. REASONS FOR REMAND 1. A rating in excess of 10 percent for left knee degenerative osteoarthrosis and a rating in excess of 20 percent prior to May 17, 2018, and in excess of 30 percent for residuals, left knee injury, status post meniscectomy is remanded. The Veteran was most recently afforded a VA examination for his left knee disabilities in May 2018. Upon review of the May 2018 examination report, the Board finds that while the examiner stated she was unable to say whether pain, weakness, fatigability, or incoordination significantly limited functional ability of the left knee with repeated use over time, there is no indication in the record that the examiner attempted to elicit information and/or any estimate by the Veteran as to what extent the factors may affect his functional impairment, or report the limited functional ability in terms of range of motion. Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, upon remand, a new VA examination and opinion should be obtained to address this missing information. Additionally, the Veteran’s representative claimed a worsening of the Veteran’s left knee disability since the May 2018 examination, indicating symptoms of instability, pain, stiffness and weakness associated with his left knee disability have worsened. Given this claim of worsening since the most recent VA examination, a contemporaneous VA medical examination is warranted. 2. TDIU is remanded. Finally, as noted above, a claim of entitlement to a TDIU was raised by the record in connection with his claims for an increased rating. See Rice, supra. The issue of entitlement to a TDIU is inextricably intertwined with the left knee disabilities being remanded, and thus the Board will defer consideration of the appeal with regard to entitlement to a TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The Board notes that the Veteran’s percentage ratings do not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) throughout the entire appeal period. However, VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA’s Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). The matters are REMANDED for the following action: 1. Obtain any updated VA or adequately identified private treatment records relevant to the matter on appeal. 2. Schedule the Veteran for a new VA examination to ascertain the severity and manifestations of his service-connected left knee disabilities. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is instructed to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for evaluating the Veteran’s service-connected left knee disabilities. The examiner should also provide the range of motion in degrees. In so doing, the examiner should test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and non-weight-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 should clearly explain so in the report. It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use due to the Veteran’s disability. In this regard, the examiner must indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. Any additional impairment on use or in connection with flare-ups or repetitive use should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such flare-ups or repetitive use affect functional impairment. This testing should be done regardless of whether the Veteran is tested during a flare-up or repetitive use over time or not. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). 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 should clearly explain why that is so. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. If, after completion of instructions above, there is evidence that the Veteran’s service-connected disabilities preclude gainful employment and he does not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) for any portion of the appeal period, the AOJ should refer the case to VA’s Director of C&P for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b). MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Kelly A. Gastoukian, Associate Counsel