Citation Nr: 18145936 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 17-50 709 DATE: October 30, 2018 ORDER The request to reopen the claim for service connection for lumbosacral strain, secondary to the service-connected left knee disability is granted. REMANDED Entitlement to service connection for bilateral hip bursitis, secondary to the service-connected left knee disability is remanded. Entitlement to service connection for a low back disability, secondary to the service-connected left knee disability is remanded. Entitlement to service connection for left knee nerve damage, secondary to the service-connected left knee disability is remanded. Entitlement to an initial evaluation in excess of 10 percent for right knee patellofemoral pain syndrome is remanded. Entitlement to a total disability rating due to unemployability (TDIU) is remanded. FINDINGS OF FACT 1. An August 2004 rating decision denied service connection for low back arthritis. The Veteran did not appeal the decision and no new and material evidence was received within a year of the denial. Therefore, the decision became final. 2. The evidence associated with the claim file after the August 2004 rating decision is probative and relevant concerning the claim of service connection for a lumbar spine disability. CONCLUSIONS OF LAW 1. The August 2004 rating decision is final as to the denial of service connection for low back arthritis. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence sufficient to reopen the issue of a lumbar spine disability has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1986 to May 1987. This matter came before the Board of Veterans Appeals (Board) on appeal from November 2015 and July 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Evidence in the record suggests that the Veteran has been diagnosed with multiple low back conditions; therefore, the Board will broadly construe the issue of service connection for lumbosacral strain as a claim for service connection for a lumbar spine disability, to include lumbosacral strain, arthritis and scoliosis. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (holding that the Board must consider any disability that “may reasonably be encompassed by” the description of the claim and symptoms and other submitted information). The request to reopen the claim for service connection for lumbosacral strain as secondary to the service-connected left knee disability is granted. The Veteran contends that his low back disability was caused by his service-connected left knee disability. The question for the Board is whether new and material evidence has been added to the file since the August 2004 rating decision sufficient to reopen the issue on appeal. The Board concludes that new and material evidence has been submitted and reopening is therefore warranted. The Veteran was denied service connection for arthritis of the lower back in an August 2004 rating decision. The basis of the decision was that the Veteran’s arthritis was not caused by his service-connected left knee disability. The decision was not appealed and is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The evidence previously considered that pertains to the issue on appeal includes a July 2004 VA examination, the Veteran’s May 2004 and July 2004 lay statements, VA treatment records from March 2002 through June 2004. Since the August 2004 rating decision, the evidence added to the file includes an October 2015 VA examination. The examiner noted the Veteran’s left knee injury in service and stated that “having the injury to the knee and compensating very well could have caused some inflammation in other major muscle groups like the lumbar region.” The Board finds that this evidence pertains to the unestablished fact of the link between the Veteran’s service-connected knee disability and his lumbar spine disability. It therefore raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection and constitutes new and material evidence for the purpose of reopening the issue on appeal. 38 C.F.R. § 3.156(a). Therefore, reopening the claim for service connection for a lumbar spine disability is warranted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hip bursitis, secondary to the service-connected left knee disability is remanded. 2. Entitlement to service connection for a low back disability, secondary to the service-connected left knee disability is remanded. 3. Entitlement to service connection for left knee nerve damage, secondary to the service-connected left knee disability is remanded. The RO last adjudicated the issues of service connection for lumbar spine, bilateral hip and left knee nerve damage in an August 2017 Statement of the Case (SOC). Since that time, VA treatment records from the Fayetteville VA Medical Center (VAMC) have been added to the record. A waiver of AOJ review has not been submitted. Accordingly, remand is necessary for the AOJ to consider the new evidence of record and issue an SSOC. The Board notes that the June 2017 VA examiner found that the Veteran’s lumbar spine disability was not likely caused by his service-connected left knee disability. The examiner stated that the Veteran had scoliosis and that it was not likely caused by his left knee pain as this was “not a normal expected pathophysiology.” However, the Board finds that this opinion pertains solely to the issue of causation and does not address the question of aggravation. As the examiner did not address the issue of aggravation, the opinion is inadequate. See El-Amin v. Shinseki, 26 Vet. App. 136, 140–41 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). Another lumbar spine VA examination was performed in October 2015. The examiner gave a negative response to the question of whether the Veteran’s lumbar spine disability was caused by his left knee disability, but the provided rationale was that the left knee injury and resulting compensation “very well could have caused some inflammation in other major muscle groups like the lumbar region.” This rationale contradicts the examiner’s finding regarding causation. In addition, the language of the rationale is speculative and therefore provides inadequate basis for appellate review. The Board therefore finds that the October 2015 VA examination was also inadequate. A new examination regarding the etiology of the Veteran’s lumbar spine disability should therefore be provided upon remand. 4. Entitlement to an initial evaluation in excess of 10 percent for right knee patellofemoral pain syndrome is remanded. The RO last adjudicated the issue of an increased rating for the Veteran’s right knee disability in a November 2017 SOC. Since that time, an April 2018 VA knee examination has been added to the record. A waiver of AOJ review has not been submitted. Accordingly, remand is necessary for the AOJ to consider the new evidence of record and issue an SSOC. 5. Entitlement to a total disability rating due to unemployability (TDIU) is remanded. The issue of entitlement to TDIU must also be remanded as it is inextricably intertwined with the issues of service connection for low back, bilateral hip and left knee nerve damage and the issue of an increased rating for the right knee. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when the adjudication of one issue could have “significant impact” on the other issue). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from October 2017 to the Present. 2. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current lumbar spine disability, to include lumbosacral strain, arthritis and scoliosis. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current lumbar spine disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation by the service-connected disability. In providing the opinion, the examiner should consider and discuss any lay statements of record. 3. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel