Citation Nr: 18160725 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 17-07 713 DATE: December 27, 2018 REMANDED Entitlement to an evaluation in excess of 10 percent for left knee internal derangement with arthritis is remanded. Entitlement to service connection for lumbar spine spondylosis, as secondary to the service-connected disability of left knee internal derangement with arthritis, is remanded. REASONS FOR REMAND The Veteran served in the Army from January 5, 1983 to February 27, 1987. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The Board has noted that the Veteran attempted to participate in VA’s test program RAMP, the Rapid Appeals Modernization Program. Unfortunately, the Veteran’s request to participate was received too late in the processing of his claim to be accepted, and this decision has been written consistent with existing framework. Although the Board regrets the additional delay, a remand is required for further development and adjudicative action. 1. Entitlement to an evaluation in excess of 10 percent for left knee internal derangement with arthritis is remanded. The Veteran was last provided with a VA examination relevant to this disability in April 2014, over four years ago. However, the Veteran reported in his January 2017 VA Form 9 that his “left knee is worse” and that he has “bursitis”. As this indicates a worsening of the Veteran’s knee condition since his last VA examination, the Board must remand the claim so that the RO can schedule the Veteran for an updated examination to determine the current severity of his service-connected knee condition. See 38 C.F.R. § 3.159 (c)(4)(i); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (indicating that a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran’s contention that the pertinent disability had increased in severity). 2. Entitlement to service connection for lumbar spine spondylosis, as secondary to the service-connected disability of left knee internal derangement with arthritis, is remanded. The Veteran is also claiming service connection for lumbar spine spondylosis, as secondary to his service-connected left knee internal derangement. Secondary service connection may be granted for a disease or injury which resulted from a service-connected disability or was aggravated thereby. 38 C.F.R. § 3.310. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Further, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will also be service connected. However, a medical opinion as to secondary service connection is inadequate for the Board’s decision as to aggravation if the issue of aggravation is not sufficiently addressed by the examiner. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). An examiner’s determination that the disease or injury at issue is not “related to” the service-connected condition is not sufficient to address the aggravation issue. Id. In Veteran was afforded a Compensation and Pension Examination in April of 2014. That examiner initially addressed both prongs of secondary service connection in stating that the “Veteran’s claimed back condition is not proximately due to or the result of or aggravated by SC left knee condition”. Ultimately, however, the examiner only offered sufficient rationale for the causation prong. For example, the examiner stated that there “is no objective evidence that [the] claimed condition is at all related to [his] left knee condition” and that “there is NO history of trauma or fracture of lumbar spine due to the left knee, causing secondary degeneration”, statements that only address the causation prong. Further, as the examiner indicated “no” to the question of whether the entire claims file was reviewed, it is unlikely that he was privy to the Veteran’s entire medical history in making these statements. The examiner also did not sufficiently address whether any increase in severity in the Veteran’s lumbar spine condition could be due to the Veteran’s service-connected knee condition. Instead, while the examiner stated that the “changes on lumbar x-rays are primary changes, due to aging and everyday/occupational stresses”, the examiner did not explicitly negate the possibility that the Veteran’s service-connected left knee condition could also be an aggravating factor. Thus, the aggravation prong of secondary service connection was not sufficiently addressed by the April 2014 examiner and a remand is necessary for an addendum opinion by an appropriate clinician. See id. If on remand, the VA examiner determines that the Veteran’s left knee condition has indeed worsened, the clinician who thereafter writes the addendum opinion will need to specifically address the worsened state of the left knee in opining whether the left knee condition could have caused or aggravated the Veteran’s claimed lumbar spine spondylosis. The record also indicates that VA has not received any VA treatment records since January 2017. Any outstanding VA treatment records should also be obtained on remand. The matters are REMANDED for the following actions: 1. Associate with the claims file any outstanding VA treatment records from January 2017 through the present. 2. Following completion of step one, schedule the Veteran for a VA examination to assess the current severity of the service-connected left knee internal derangement with arthritis. The examiner must be provided with and review the entire claims file, to include a copy of this remand and any outstanding VA Treatment records. Following a review of the evidence of record, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the internal derangement of the left knee alone and discuss the effect of the Veteran’s internal derangement of the left knee on any occupational functioning and activities of daily living. The examiner is also asked to reconcile, to the extent possible, the Veteran’s assertion that he has bursitis. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, 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). 3. Following completion of step two, obtain an addendum opinion from an appropriate clinician. The clinician must be provided with and review the entire claims file, to include a copy of this remand, any outstanding VA Treatment records, and the results of the new VA Examination for the Veteran’s service-connected left knee that will be scheduled on remand. Following a review of the evidence of record, to include the Veteran’s lay statements, the clinician should opine whether the Veteran’s lumbar spine spondylosis is at least as likely as not (50 percent or greater probability): (a.) proximately due to his service-connected left knee condition or (b.) aggravated beyond its natural progression by his service-connected left knee condition. If aggravation is shown, the examiner should quantify the degree of aggravation, if possible. Aggravation is defined as a permanent worsening beyond the natural progression of the disease. The question of secondary aggravation must be addressed separately from the question of secondary causation. The examiner must note that an opinion to the effect that one disability is not “caused by,” “a result of,” or “secondary to” another disability does not answer the question of aggravation and will necessitate a further opinion. Additionally, if the results from the new VA examination indicate that the Veteran’s left knee condition has worsened, the clinician is asked to address, to the extent possible, the worsened state of the left knee in opining regarding the lumbar spine spondylosis. The examiner must indicate that the entire record was reviewed. A complete rationale must be provided for any opinion given. 4. Thereafter, readjudicate the claim. If the benefits sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative. Then return the appeal to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.Smith, Law Clerk