Citation Nr: 18147065 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 14-03 705 DATE: November 2, 2018 REMANDED Entitlement to service connection for a low back disorder, to include as secondary to service-connected left knee meniscal tear with slight muscle atrophy is remanded. Entitlement to a rating in excess of 20 percent for left knee meniscal tear with slight muscle atrophy is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1990 to February 1991 and from September 1994 to January 1995with additional service in the Air National Guard. These matters initially came before the Board of Veterans’ Appeals (Board) from a February 2012 rating decision. The Board remanded the case for further development in June 2015 and April 2018. The case has since been returned to the Board for appellate review. 1. Service Connection Claim Although the Board regrets the delay, the Board finds that additional development is warranted. On VA examination in August 2018, the examiner opined that the claimed low back disorder was less likely than not caused by or aggravated by the Veteran’s service-connected condition. In so finding, the examiner noted the knee joint is in an anatomically separate location from the lumbar spine, and he was unable to find any medical literature that supported the concept that a knee condition would aggravate or cause degenerative joint disease in the lumbar spine. However, as referenced in the prior remand, in December 2014, the Veteran’s representative submitted a medical study indicating that limping could be a factor which led to back pain as “[i]creased spinal motion as a result of abnormal displacements of the body’s center of gravity while walking will also contribute to disc breakdown, particularly at the lumbosacral region” and “ [b]ecause each type of limp causes exaggerated bending and rotation of the trunk, it is probable that over time, this could accelerate normal aging change and thus cause back symptoms.” The April 2018 remand instructions specifically instructed that the examiner must consider and discuss the December 2014 medical study submitted by the Veteran’s representative. The August 2018 examination report does not discuss the findings of the medical study. Thus, there has not been substantial compliance with the Board’s remand directives, and an additional remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, for the same reason, the Board finds that the August 2018 VA examination report is not adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Increased Rating Claim While the record here contains contemporaneous VA examinations regarding the Veteran’s disability, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The Board notes that the August 2018 VA examination report contained a section that noted that there was no “evidence of pain on passive range of motion testing” and that there was no “evidence of pain when the joint is used in non-weight bearing.” While it appears that this was an attempt to comply with Correia, the Court specifically stated in that case that “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of” 38 C.F.R. § 4.59 and additionally that “the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities.” The Court specifically stated that “range of motion testing” was required and the information provided by the August 2018 VA examination regarding a lack of evidence of pain on passive range of motion and in non-weight bearing failed to provide the information required pursuant to Correia, as range of motion results were not provided on both active and passive motion, in weight-bearing and nonweight-bearing. Likewise, the examinations do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner noted on the August 2018 examination, with respect to the left knee, that they were “[u]nable to say [without] mere speculation” whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups. The examiner did not provide an adequate explanation as to why this was the case. The Court stated in Sharp, in regard to a VA examination report’s discussion of flare-ups, that “[b]ecause the VA examiner did not...estimate the Veteran’s functional loss due to flares based on all the evidence of record-including the Veteran’s lay information-or explain why she could not do so, the...examination was inadequate.” As such, while on remand, the requested VA opinion must also contain adequate information pursuant to Sharp. The Veteran’s updated VA treatment records, if relevant, should also be obtained, and he should be provided the opportunity to submit or identify any further private (non-VA) treatment records. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. If possible, the Veteran himself should submit any pertinent new evidence regarding the conditions at issue in order to expedite the claim. 2. Then, forward the claims file to an appropriate VA clinician to obtain an addendum opinion regarding the low back disorder. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran’s low back disorder was caused by or aggravated by a service connected disability, to specifically include the service-connected left knee disorder and any resultant gait abnormalities. The examiner must consider and address the medical literature submitted in December 2014 from the Veteran’s representative. 3. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of the Veteran’s service-connected left knee disability. All appropriate testing, including range of motion, should be performed. The left knee should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing. If this cannot be performed, the examiner should explain why. The examiner should also note whether pain, weakness, fatigability, or incoordination cause additional functional impairment on repeated use over time or during flare-ups. The examiner should assess additional functional impairment in terms of the degrees of additional range of motion loss, if possible. If the Veteran is not being observed during a flare-up or after repeated use over time, the examiner should still estimate any additional functional impairment based on the evidence of record and the Veteran’s descriptions of repeated use or flares’ severity, frequency, duration, and/or functional loss manifestations. If the additional functional impairment cannot be assessed or estimated in terms of the degrees of additional range of motion loss, the examiner must explain why. 4. Thereafter, readjudicate the claim remaining on appeal. If any benefit sought is not granted, the Veteran should be furnished a supplemental statement of the case and provided an opportunity to respond before the case is returned to the Board. JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel