Citation Nr: 19120899
Decision Date: 03/21/19	Archive Date: 03/21/19

DOCKET NO. 09-41 932A
DATE:	March 21, 2019

REMANDED

Entitlement to service connection for a low back disability is remanded.

REASONS FOR REMAND

The appellant is a Veteran who served on active duty from February 1973 to February 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2010 Department of Veterans Affairs (VA) rating decision. In October 2015, a videoconference hearing was held before the undersigned; a transcript of the hearing is in the Veteran’s record. 

In an August 2017 decision, the Board in part denied the claim of service connection for a low back disability. In response to the August 2017 Board decision denying service connection for a low back disability, the Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). A Joint Motion for Partial Remand (JMPR) was filed and in September 2018, the CAVC issued an Order vacating and remanding the August 2017 denial. Importantly, the JMPR took issue with the Board’s conclusion that the Veteran’s low back disability is not secondary to his service-connected disabilities. Specifically, the parties concluded that the Board did not adequately address secondary service connection. 

In light of the September 2018 JMPR, further action in connection with the claim is warranted. In particular, the JMPR noted that the Board erred in relying upon a July 2016 VA examination in which the examiner provided contradictory findings in regards to the presence of an altered gait due to his service-connected knee condition. The Board notes several VA examinations and VA treatment records document an antalgic gait; it can be reasonably presumed that an altered gait manifested during the pendency of the claim. See November 2007 VA examination, January 2009 VA examination, September 2010 VA treatment record (Veteran observed walking into clinic with an antalgic gait pattern), March 2011 VA examination, July 2013 VA treatment record, and July 2016 VA examination. 

The July 2016 VA examiner did not adequately address whether the Veteran’s low back disability was related to his service-connected left knee disability, to include an altered gait. Accordingly, an additional medical opinion is required.  

The matter is REMANDED for the following action:

Arrange for the Veteran to be examined by an appropriate clinician to determine the nature and likely etiology of his low back disability. The Veteran’s record must be reviewed by the examiner in conjunction with the examination. On examination and review of his record, the examiner should provide an opinion that responds to the following:

(a) Whether it is at least as likely as not (a 50% or greater probability) that the Veteran’s low back disability was caused or aggravated by (increased in severity due to) the Veteran’s service-connected knee disability, to include an altered gait due to the knee disability. [The opinion must address aggravation.] 

(b) If it is found that his service-connected knee disability did not cause, but aggravated, his low back disability, specify, to the extent possible, the degree of disability (symptoms/impairment) that has resulted from such aggravation.

A complete rationale for the opinion must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.

 

M. H. HAWLEY

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	A. Naumovich, Associate Counsel