Citation Nr: 18148100 Decision Date: 11/07/18 Archive Date: 11/06/18 DOCKET NO. 15-43 694 DATE: November 7, 2018 ORDER New and material evidence having been received, the application to reopen the previously denied claim for service connection for a low back disorder is granted. REMANDED Service connection for a low back disorder is remanded. Entitlement to a rating in excess of 30 percent for residuals of left knee replacement is remanded. FINDINGS OF FACT 1. An unappealed September 1979 rating decision declined to reopen the claim of service connection for a low back disorder. 2. Evidence added to the record since the September 1979 decision provides a reasonable possibility of substantiating the claim for service connection for a low back disorder. CONCLUSION OF LAW New and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for a low back disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1958 to March 1962. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a February 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2018, the Veteran testified at a Board before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The record was held open for an additional 60 days for the Veteran to submit additional evidence. He waived RO consideration of any additional evidence added to his file. The Board finds that new and material evidence has been received to reopen the claim of service connection for a low back disorder. The claim was previously denied in an unappealed January 1977 rating decision because there was no evidence to show the Veteran’s lumbar disc disability was proximately due to his service-connected left knee condition. This determination was confirmed in an unappealed September 1979 rating decision which found no new and material evidence had been provided. Newly received evidence includes a June 2014 private medical statement that “the back pain and back malalignment could be associated with the pathology related to the knee and the malalignment in the knee, which can translate to malalignment in the hips, and essentially the back.” The newly received evidence also includes a May 2018 private medical statement that the Veteran’s left knee condition was “aggravating” his neck, thoracic and lumbar spine problems. Therefore, the claim is reopened. REASONS FOR REMAND Regarding the reopened claim of service connection for a low back disorder (on de novo review), the Board finds that remand for additional development is necessary. Specifically, the June 2014 statement is stated in speculative (“could”) terms, the May 2018 statement provides no explanation of rationale and neither statement reflects consideration of the Veteran’s history of back injuries in connection with his post-service employment. In light of the foregoing, the Board finds that the low threshold has been met for triggering the Secretary’s duty to assist by providing a medical examination to address the questions of whether the Veteran has a low back disorder that is related to or aggravated by his service-connected left knee disability. Regarding the left knee increased rating claim, review of the record shows the Veteran underwent VA examinations in January 2013 and August 2015; however, these examinations do not comply with the requirements set out in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Specifically, the examinations do not contain information pertaining to pain on both active and passive motion, in weight-bearing and non-weight-bearing. In addition, these examination reports do not include opinions as to the functional loss the Veteran experienced during flare-ups of his left knee disability. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Accordingly, further development is necessary to determine whether that information can be procured through examination, estimation or otherwise. The matter is REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims, to include updated VA and private treatment records. 2. After the action requested in paragraph (1) is completed, please schedule the Veteran for an examination to determine the nature and etiology of his low back disorder and the extent and severity of his service-connected left knee disability. The Veteran’s claims-file must be reviewed by the examiner in conjunction with the examination. Any indicated tests or studies should be conducted. Based on review of the record, the examiner should provide an opinion that responds to the following: Back a) Please identify by diagnosis each low back disorder found since the appeal period began with receipt of the Veteran’s June 2012 petition to reopen the claim of service connection for a low back disorder. b) Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed low back disorder had its onset in active service or is otherwise related to the Veteran’s active service? c) As to any diagnosed low back disorder, is it at least as likely as not (a 50 percent or greater probability) that such was caused by the Veteran’s service-connected left knee disability? d) As to any low back disorder, is it at least as likely as not (a 50 percent or greater probability) that such was aggravated by (increased in severity due to) the Veteran’s service-connected left knee disability? e) If the opinion is that a low back disorder was not caused, but was aggravated by the service-connected left knee disability, specify, to the extent reasonably possible, the degree of disability that resulted from such aggravation (i.e., identify the baseline level of severity of the disorder before the aggravation occurred, and the level of severity of the disorder after aggravation). In providing the opinions requested, the examiner should consider as necessary private treatment records showing treatment/surgery for multiple low back injuries in connection with post-service employment (See, e.g., April 1979 letter from J.W.H., M.D.) as well as the June 2014 and May 2018 statements from the Veteran’s private treatment providers. Left Knee a) Please test the range of motion of the Veteran’s left knee in active motion, passive motion, weight-bearing, and non-weight-bearing, if possible. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, please clearly explain why that is so. b) Please note in the report descriptions of flare-ups and describe any functional loss due to flare-ups in terms of additional loss in range of motion. c) To the extent feasible, please provide a retrospective opinion with respect to the Veteran’s left knee disability since his June 2012 claim for increase. In particular, the examiner should (a) provide an estimate of the range of motion in the left knee disability on passive motion, and with weight-bearing and non-weight-bearing, during that time frame; and (b) express any functional loss due to factors such as pain, weakness, fatigability, or incoordination, and any functional loss due to flare-ups, in terms of additional loss in range of motion (i.e., in addition to that observed clinically), taking into account all of the evidence, including the Veteran’s competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. The examiner is advised that governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time at the moment of examination, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner’s conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).   A full rationale is to be provided for all stated medical opinions. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Hughes, Counsel