Citation Nr: 18100704 Decision Date: 04/19/18 Archive Date: 04/19/18 DOCKET NO. 05-12 730 DATE: April 19, 2018 ISSUES DECIDED: 4 ISSUES REMANDED: 2 ORDER Service connection for a bilateral hip disorder is denied. A rating in excess of 20 percent for diabetes mellitus II (DMII) is denied. A rating in excess of 10 percent for degenerative joint disease (DJD) of the left knee is denied. An effective date prior to October 28, 2008, for the grant of service connection for DMII is denied. FINDINGS OF FACT 1. The Veteran’s bilateral hip disorder is neither proximately due to nor aggravated beyond its natural progression by his service-connected left knee disability, and is not otherwise related to an in-service injury, event, or disease. 2. The Veteran’s DMII requires insulin, oral medication, and restricted diet, but not regulation of activities. 3. For the entire period on appeal, the Veteran’s left knee disability has been manifested by subjective complaints of pain, locking, and lack of coordination; objective findings include arthritis, limitation of flexion to 110 degrees with pain, clicking and tenderness but no limited extension, ankylosis, recurrent subluxation, lateral instability, or dislocated or removed cartilage. 4. A claim for an increased rating for DMII was received on October 28, 2008; no prior unadjudicated or adjudicated claim is of record. CONCLUSIONS OF LAW 1. A bilateral hip disorder was not incurred in or aggravated by service, nor is it caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.310(a) (2017). 2. The criteria for a rating in excess of 20 percent for (DMII) have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A 5107 (2012); 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913 (2017). 3. For the entire period on appeal, the criteria for a rating in excess of 10 percent for DJD of the left knee have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DCs 5003, 5010, 5256-5263 (2017). 4. The criteria for an effective date prior to October 22, 2008, for the grant of service connection for DMII have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107, 5110, 7105 (2012); 38 C.F.R. §§ 3.157, 3.159, 3.400(o) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1963 to November 1966. In May 2017, the Board remanded the issues for additional development. It has now been returned for further appellate action. The Board has provided historical procedural recitations in its previous decisions and they are incorporated by reference at this time. During the pendency of the appeal, the Veteran perfected appeals with regard to the issues of entitlement to service connection for a low back disorder and bilateral hip disorders, as well as entitlement to earlier effective date for the grant of service connection for DMII. Service Connection for Bilateral Hip Disorder Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis: (i) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury is shown at a later date unless clearly attributable to an intercurrent cause under 38 C.F.R. § 3.309(a); or (ii) where a condition is noted in service but is not chronic or where chronicity may be legitimately question and there are continuity of symptomatology but only for specific chronic diseases listed in 38 C.F.R. § 3.309(a); or (iii) with certain chronic diseases listed in 38 C.F.R. §§ 3.307, 3.309(a) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. Service connection may also be warranted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran seeks service connection for a bilateral hip disorders. He asserts that these disorders are due to or have been aggravated by his service-connected knee disabilities. As an initial matter, review of the record indicates the onset of hip pain in approximately March 2009, and a diagnosis of DJD of the bilateral hips by X-ray at a February 2017 VA examination. Therefore, a current hip disorder is shown. Next, service treatment records (STRs) are silent for a diagnosis of or treatment for a disorder of either hip nor does the Veteran contend that his hip disorder started in service. Therefore, a hip disorder was not shown in service and direct service-connection is not warranted. Next, a hip disorder did not manifest to a compensable degree for many years following separation from service and continuity of symptomatology has not been shown. Therefore, presumptive service-connection does not apply. Rather, the Veteran’s sole contention is that a bilateral hip disorder is secondary to a service connected disability. As noted above, he has been diagnosed with DJD of the hips. Therefore, the first element of secondary service connection – a current disorder – has been met. Next, he has been granted service-connection for bilateral knee DJD; therefore, the second element of secondary service-connection – evidence of a service-connected disability – has been met. As to the third element of secondary service-connection – a nexus between the current disorder and the service-connected disability, the evidence does not support the claim. Specifically, in a February 2017 VA orthopedic examination, the Veteran was diagnosed with DJD of the hips bilaterally. This diagnosis was confirmed by X-ray. He reported the onset of his bilateral hip pain to approximately 2013 after a fall, and that stated that the pain had continued to worsen since that time. After examining the Veteran and reviewing the claims file, the examiner opined that it was less likely than not that the Veteran’s bilateral hip disorder was due to, the result of, or aggravated by a service-connected disability, to include bilateral knee disorders. Rather, the bilateral DJD of the hips was consistent with the Veteran’s age and obesity. The examiner opined that it was less likely than not that the bilateral hip disorder was aggravated by his knee disabilities as there was no documented treatment related to his hip condition noted during service. In May 2017, an addendum opinion was obtained and the examiner opined that based on the Veteran’s history, physical examination, and imaging study, his current hip osteoarthritis was less likely than not a result of service. The examiner reasoned that based on the Veteran’s own statements, his hip pain began in September 2013 after he fell. Furthermore, the examiner opined that the Veteran’s age and his obesity played a significant role in causing degenerative changes in his hips. In October 2017, the Veteran sought treatment for his hip pain. The treating provider noted an impression of hip pain likely secondary to trochanteric bursitis with concomitant friction syndrome. No mention of the Veteran’s knee disability was made. Regarding the etiology of the bilateral hip disorder, the examiner, a VA physician, opined that it was less likely than not that any current disorder of either hip was a result of his service-connected knee disability. In the physician’s medical opinion, the Veteran’s DJD of the hips was the result of normal aging and obesity. Further, while his other in-service injuries were very well-documented, the record was silent to any hip injuries in service. Also, by his own report, he did not have trouble with his hips until a fall in 2013. Of note, there is no contradictory medical evidence in support of the claim. The Veteran has asserted that his bilateral hip disorders are due to or aggravated by his service-connected knee disability. As a layperson, however, he is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, orthopedic disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements cannot be accepted as competent medical evidence. He is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. In conclusion, the preponderance of the evidence is against the award of service connection for bilateral hip disorders on any basis, and the appeal is denied. Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While a veteran's entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). When rating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Diabetes Mellitus, Type II The Veteran’s DMII is rated as 20 percent under DC 7913, which provides a 20 percent rating where DMII requires insulin and a restricted diet. A 40 percent rating for DMII requiring insulin, restricted diet, and regulation of activities. Within the criteria for a 100 percent rating, "regulation of activities" is defined as "avoidance of strenuous occupational and recreational activities." This definition also applies to the "regulation of activities" criterion for a 40 percent rating under DC 7913. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Moreover, medical evidence is required to support this criterion for a 40 percent rating. In addition, although VA regulations generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, see 38 C.F.R. §§ 4.7, 4.21, those regulations do not apply where, as here, the conjunction "and" is used and the criteria are successive, with the criteria for the lower ratings encompassed within those for higher ratings. Id. at 366; Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009). In this case, the evidence reflects that the Veteran’s DMII requires oral medication, insulin, and a restricted diet. The dispositive question is therefore whether it also requires regulation of activities. For the following reasons, it does not. The VA treatment records contain multiple references to DMII without complications, but do not indicate that the Veteran’s DMII requires regulation of activities. Specifically, VA treatment notes from as early as October 2008 indicated that the diabetes therapy at that time consisted of treatment with an oral agent. Additional VA treatment notes from August 2011 indicated that DMII was stable on medication. An October 2014 VA treatment notes showed that he had recently been prescribed insulin, as well as oral medication, for treatment of his DMII. He was also counseled on the importance of weight loss and regular exercise in relation to his blood pressure condition. In March 2017, the Veteran submitted a statement asserting that he regularly required insulin in his DMII treatment, and that his treating physicians had continuously told him that he needed to lose weight, but that he was unable to because of his knee disabilities. In a July 2017 VA examination, the examiner noted that the Veteran’s DMII was treated by a managed restricted diet, prescribed oral hypoglycemic agents, and more than one insulin injection required per day. The examiner indicated that he was not restricted in his activities due to his DMII. Furthermore, there were no hospitalizations for ketoacidosis or hypoglycemic reactions reported. A September 2017 VA treatment notes indicated that DMII was improving on medication and insulin. Based on the above, the medical evidence does not indicate that the Veteran should avoid strenuous occupational and recreational activities. Specifically, the July 2017 examiner noted that the Veteran did not require regulation of activities for his DMII. Furthermore, his medical treatment records, while voluminous in nature and indicate well-recorded recommended treatment for his DMII, showed no indications of regulation of activities as a recommended treatment method. Instead, they have shown a disability largely controlled by insulin, oral agents, and a restricted diet. Importantly, at no point through the appellate period did an examiner or treating physician indicate that the Veteran’s DMII require restriction of activities. Physical restrictions placed on the Veteran’s activities has been attributed to his knee disabilities, not to diabetes. As the only medical opinion to specifically address the question indicates that the Veteran did not have to regulate his activities due to his DMII, and this opinion is supported by the contemporaneous medical evidence, the weight of the evidence is against a finding that DMII requires regulation of activities. As the higher ratings require all require regulation of activities, the preponderance of the evidence is against a rating higher than 20 percent for DMII. The benefit of the doubt doctrine is thus not for application and the appeal is denied. Left Knee The Veteran seeks a rating in excess of 10 percent for DJD of the left knee. He contends that his left knee disability results in pain and limitation of motion, as well as functional impairment of his mobility, and that as a result, an increased rating is warranted. Knee disabilities are generally based on limitation of motion of the knee joint. Normal range of motion is 140 degrees of flexion, and zero degrees of extension. 38 C.F.R. § C.F.R. 4.71, Plate II. Further, the knee is considered a major joint. 38 C.F.R. § 4.45. Pursuant to 38 C.F.R. § 4.71a, a rating in excess of 10 percent is assigned for: • arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups (20 percent under DC 5003); • moderate recurrent subluxation or lateral instability of the knee (20 percent under DC 5257); • cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint (20 percent under DC 5258); • limitation of flexion to 30 degrees (20 percent under DC 5260); or • limitation of extension to 15 degrees (20 percent under DC 5261). The Board has considered other potentially applicable diagnostic codes pertaining to the knee, which includes DC 5259 (removal of cartilage), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum), but finds that higher ratings are not warranted. Specifically, a 10 percent rating is the highest available under DC 5259. Moreover, genu recurvatum or an impairment of the tibia and fibula have not been shown. As such, these diagnostic codes are not applicable. Turning to the evidence, arthritis is shown in the knee joint but not in 2 or more major joints; therefore, a higher rating under DC 5003 is not warranted. Next, in February 2001, the Veteran denied instability and locking. In an August 2003 VA examination, he denied locking of the knee and reported that he could walk over a mile before pain precluded him from walking. This suggests that he did not experience subluxation or instability of the knee. In a September 2004 workers’ compensation examination, he complained of pain, swelling, instability, inability to knee or squat, and difficulty going up or down stairs; however, the physical examination revealed no subluxation or instability. Similarly, subluxation and instability were specifically not shown in May 2006, November 2007, May 2008, and April 2016, July 2017 VA examinations. As subluxation and instability have not been shown, a higher rating under DC 5257 is not warranted. Next, dislocation of the semilunar cartilage with frequent episodes of locking pain, and effusion into the joint has not been shown. A May 2006 VAX indicated that there was no evidence of patellar or meniscal abnormalities. A March 2007 treatment note revealed no fracture, dislocation or joint effusion. In a March 2010 examination, and an MRI revealed small suprapatellar left knee joint effusion, focal loss of the cartilage of the patellar apex, and mild prepatellar bursitis. However, the examiner characterized the MRI findings as insignificant. In February 2011, the Veteran denied locking. The examiners found no effusion in November 2011, January 2016, and April 2016. Even considering that there was a small effusion noted in March 2010, it was not characterized as frequent as this was the only mention of it. Therefore, a higher rating is not warranted under DC 5258. Next, the Board will consider whether higher ratings are warranted for limitation of flexion or limitation of extension. Normal flexion is to 140 degrees (knee bent in a sitting position) and normal extension is to 0 degrees (knee straight out in front in a sitting position). After a review of the evidence, flexion has been limited to, at most, 110 degrees but additional evidence reflects extension was generally noted to be in the 115-125 degree range. Even considering pain starting at 90 degrees (in a May 2006 VA examination), that level of limitation is still not sufficient to warrant a higher rating. In addition, extension has been consistently reported as 0 degrees, which is anatomically normal. As limitation of flexion has not been limited to 30 degrees and flexion has not been limited to 15 degrees, higher ratings are not warranted under DC 5260 or DC 5261. In making the above findings, the Board has considered functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all of the necessary bones, joints and muscles or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. §4.40. The factors of disability affecting joints are reduction of their normal excursion of movements in different planes weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. However, the May 2006 VA examiner found that even when taking pain into consideration the Veteran had flexion of the left knee to 90 degrees. In addition, numerous VA examiners concluded that there was no additional loss of joint function upon repetition due to pain, fatigue, or lack of coordination. Therefore, even when considering the DeLuca criteria, the Veteran would not be entitled to a higher rating for limitation of motion. In regards to the Veteran's testimony regarding left knee replacement, some treatment records reference this surgery. According to March 2007 and May 2007 VA outpatient treatment records, he was recommended for total knee arthroplasty; however, the record demonstrates that he never underwent such procedure, and according to March 2010 VA outpatient treatment record, there were no X-ray or MRI findings to suggest that he required this surgery. Furthermore despite the references to knee replacement surgery in 2007, a VA examination in November 2007 revealed no objective symptomatology that would warrant higher rating. Therefore, the mere consideration of knee replacement surgery is not in and of itself sufficient to warrant higher disability rating. The Board has also considered the Veteran’s lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s knee disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, the Board finds these records to be more probative than the Veteran’s subjective evidence of complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeal is denied. Earlier Effective Date for Diabetes The Veteran seeks an effective date prior to October 28, 2008, for the award of service connection for his DMII. Generally, the assignment of effective dates is governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. If a claim is received within one year of a veteran’s separation from service, the effective date will be the date of separation from active duty or the date that entitlement arose. Otherwise, the effective date for an award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase, will be the date of receipt of the claim or the date that entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In the present case, the Veteran was assigned an effective date of October 28, 2008, based on a formal claim for service-connection of the same date. He asserts that an effective date back to April 2005 should be assigned, based on an allegation that he filed his claim at that time. At the outset, these claims were received well after one year following the Veteran’s discharge from service. As such, the RO based the October 28, 2008, effective date for the award of service connection for DMII on the receipt on that date of a formal claim. Upon review of the totality of the record, there is no communication from the Veteran received prior to October 28, 2008, which could reasonably be construed as a formal or informal unadjudicated claim for service connection for DMII. The Veteran asserts that he previously filed a service connection claim for DMII in April 2005. A review of the record shows that he filed a claim in June 2003 for “S/C for chemical drug exposure. I have a problem sleeping. With my libido and have high blood pressure.” As a result of this claim, the RO adjudicated claims for hypertension, erectile dysfunction and a sleep disorder. He contends that this statement was meant to include a claim for diabetes as it was also asserted to be due to herbicide exposure. Importantly, herbicide exposure in and of itself, without a disorder specifically asserted, does not qualify for a claim of service connection as a specific disability must be shown to exist. While the Veteran continued to file claims and disagreements with rating decisions on the above three issues, he did not file a claim for service connection for DMII until October 2008. Specifically, he did not assert, and the record does not show, that he filed a claim of entitlement to service connection for DMII prior to October 2008. As there remain no formal or informal unadjudicated claims provided or received prior to October 28, 2008, it is considered the date of the claim of entitlement to service connection for DMII. As the preponderance of the evidence is against the claim, an effective date prior to October 28, 2008, for the award of the benefit of service connection for DMII is denied and the benefit of the doubt doctrine is not for application. As such, the appeal is denied. REMANDED ISSUES Issues Remanded: (1) service connection for a back disorder and (2) TDIU. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Regarding the back disorder, clarification is needed of the medical opinion. Specifically, the February 2017 VA examiner opined that the low back disorder was less likely than not proximately due to or the result of a knee disability as there was no significant abnormality or gait noted on the examination. The examiner also opined that the low back condition was at least as likely as not aggravated beyond its natural progression by the Veteran’s service-connected knee disability as there was no indication of back pain following service until the Veteran fell. However, this opinion was offered based on a question of aggravation of a preexisting disorder and the knee was not a preexisting disorder. The examiner also at different points opined that the Veteran’s back disability was due to his age and his weight. These opinions are internally inconsistent and clarification is needed. With regard to TDIU, in May 2017, the Board remanded the matter for additional development. The AOJ was directed to refer the Veteran’s appeal for TDIU to the Under Secretary for Benefits of the Director of Compensation Service for consideration of assignment for an extraschedular TDIU under the provisions of 38 C.F.R. § 4.16(b) if he did not become schedularly eligible for TDIU after adjudication of his left knee appeal. In October 2017, the AOJ issued a supplemental statement of the case denying an increased rating for the Veteran’s left knee disability, but the record does not indicate that any attempts to refer the appeal to the Director of Compensation Service or the Under Secretary for Benefits were ever made. As such, there has not been substantial compliance with the prior Board remand orders and additional development is necessary. Stegall v. West, 11 Vet. App. 271 (1998). Accordingly, the matter is REMANDED for the following actions: 1. Identify and obtain any outstanding, pertinent VA or private treatment records and associate those documents with the claims file. 2. Direct the claims folder to an appropriate clinician for a supplemental opinion on the nature and etiology of the Veteran’s back disorder. The claims file and a copy of this remand must be made available for review. In particular, the examiner should offer an opinion as to the following: *Whether it is at least as likely as not (50 percent or greater probability) that the current low back disorder was caused by or aggravated by the Veteran’s service-connected knee disabilities. The reviewer is asked to address the Veteran’s lay statements regarding the onset following falls. Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. In formulating the opinion, the clinician is advised that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that is as medically sound to find in favor of the claim as it is to find against it. This should include any consideration for his age and weight, and other noted risk factors. A complete rationale should be provided for all opinions or conclusions expressed. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the clinician should provide a fully reasoned explanation. If the clinician feels that an examination is needed to address the issues, one should be ordered. 3. Refer this case to the Under Secretary for Benefits or the Director of Compensation Service, for consideration of assignment of an extraschedular TDIU under the provisions of 38 C.F.R. § 4.16(b). 4. Then, readjudicate the appeal. If any decision remains adverse to the Veteran, issue a supplemental statement of the case to her and her representative and allow the appropriate time for response. Then, return the case to the Board. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel