Citation Nr: 20008041 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 17-18 637 DATE: January 30, 2020 REMANDED Entitlement to service connection for a right knee disability, manifested by the postoperative residuals total right knee arthroplasty to include as secondary to service-connected left knee disability is remanded. Entitlement to service connection for a low back disability to include as secondary to service-connected left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1959 to April 1961, from December 1990 to July 1991, and from August 1991 to September 1991. The Veteran also had service in the Army Reserve with various periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This case comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In December 2017, the Board remanded the service connection claims for a right knee disability, a low back disability, and hypertension. The Board remanded the issues in order to obtain any outstanding service treatment records, provide the Veteran an opportunity to submit private treatment records, and to obtain VA medical opinions. In an August 2019 rating decision, the RO granted service connection for hypertension. Accordingly, that issue is no longer on appeal before the Board. 1. Entitlement to service connection for a right knee disability, manifested by the postoperative residuals total right knee arthroplasty to include as secondary to service-connected left knee disability is remanded. The Veteran stated that he went to paratrooper jump school and his bilateral knee condition is a result of parachute landing falls. In addition, the Veteran contends that his right knee disability is secondary to his left knee disability. The Veteran’s DD-214 reveals that the Veteran was awarded the parachutist badge. Pursuant to the Board’s December 2017 remand, the RO was instructed to secure an opinion responsive to the questions of whether the Veteran’s right knee disability incurred in or otherwise related to active-duty service, or was a result of an injury incurred or aggravated in the line of duty during a period of ACDUTRA or INACDUTRA; and whether any diagnosed right knee disability was caused or aggravated by the service-connected left knee disability. In a May 2019 opinion, the examiner found that it is less likely as not that any diagnosed right knee disability was incurred in or otherwise related to active-duty service, or was a result of an injury incurred or aggravated in the line of duty during a period of ACDUTRA or INACDUTRA. This opinion and rationale from the May 2019 VA examiner is a verbatim duplication of that opinion and rationale provided by the VA examiner in February 2013. Further, the examiner failed to address the Veteran’s statements that suggests that his right knee disability is a result of his parachute landing falls. Dalton v. Nicholson, 21 Vet. App. 23 (2007). In addition, with regards to secondary service connection, the examiner opined that it is less likely as not that any diagnosed right knee disability was caused or aggravated by the Veteran’s service-connected left knee disability. The examiner stated that there is no clear evidence to suggest that an injury to one lower extremity would have any significant impact on the opposite uninjured limb unless the injury resulted in major muscle or nerve damage causing partial or complete paralysis of the damaged leg, and/or shortening of the injured lower extremity resulting in a limb length discrepancy of more than four or five centimeters so that the individuals gait pattern has been altered to the extent that clinically there is an obvious lurching type gait. However, the examiner did not discuss how this did or did not apply to the Veteran. Further, the examiner did not provide separate opinions with regards to causation and aggravation. Separate opinions and reasons should be rendered concerning causation and aggravation, to ensure that all information necessary is provided. Therefore, the Board finds that a remand is warranted to ensure compliance with the previous remand. 2. Entitlement to service connection for a low back disability to include as secondary to service-connected left knee disability is remanded. The Veteran contends that his low back condition is a result of a jeep accident in service. In addition, the Veteran contends that his low back disability is secondary to his left knee disability. The Veteran submitted an article that stated that two members of the Army Reserve, participating in a military training exercise were injured when a jeep in which they were riding, overturned. The article stated that one man was admitted for further treatment. The article listed the Veteran’s name under the admitted column. The Veteran submitted a buddy statement from W.D. Waldron who expressed that early morning on September 26, 1967, the Veteran, Captain, L. Coyne, Sergeant R. Burfield, and W.D. Waldron were traveling down a narrow trail by jeep, when they were involved in a rollover accident in which the Veteran was seriously injured. W.D. Waldron stated that the vehicle rolled approximately seventy-five feet down a steep rock embankment. It was noted that the Veteran was thrown out of the vehicle and the jeep came to rest on the Veteran’s lower body and legs. W.D. Waldron expressed that the Veteran was treated for cuts, abrasions, and injuries to his lower back and legs. The Veteran submitted a buddy statement from LTC R. Baird who stated that he was deployed to Allegheny National Forest in Pennsylvania on September 27, 1967 for training exercises. During this training, two members of the Unit were on a back trail in a jeep and were turned down a ravine. LTC R. Baird expressed that the accident pinned the Veteran under the jeep and that the Veteran was immediately transported to the Tionesta Hospital. Pursuant to the Board’s December 2017 remand, the RO was instructed to secure an opinion responsive to the questions of whether the Veteran’s low back disability incurred in or otherwise related to active-duty service, or was a result of an injury incurred or aggravated in the line of duty during a period of ACDUTRA or INACDUTRA; and whether any diagnosed low back disability was caused or aggravated by the service-connected left knee disability. In a May 2019 opinion, the examiner found that it is less likely as not that any diagnosed low back disability was incurred in or otherwise related to active-duty service, or was a result of an injury incurred or aggravated in the line of duty during a period of ACDUTRA or INACDUTRA. Unfortunately, rather than providing the requested opinion, the May 2019 examiner simply copied an earlier February 2013 examiner’s opinion verbatim and submitted it. The examiner failed to address the Veteran’s credible buddy statements indicating that the Veteran experienced a back injury after a jeep accident. The Veteran specifically submitted an article listing him as an admitted patient following the jeep accident. In addition, with regards to secondary service connection, the examiner opined that it is less likely as not that any diagnosed low back disability was caused or aggravated by the Veteran’s service-connected left knee disability. The examiner expressed that the left knee condition was not severe or long standing enough to affect the Veteran’s back. The examiner opined that the Veteran’s back condition is age related. The examiner noted that current medical literature support that degenerative joint disease/degenerative disc disease changes of the lumbar spine are more likely secondary to expected aging process as commonly seen at the Veteran’s age group. While the examiner expressed that the Veteran’s left knee disability did not affect the Veteran’s back condition, the examiner did not address the issue of whether the low back disability was aggravated beyond its normal progression by the service-connected left knee disability. Separate opinions and reasons should be rendered concerning causation and aggravation, to ensure that all information necessary is provided. In addition, the examiner stated that the Veteran’s left knee disability was not severe or long standing enough to affect the Veteran’s back. However, the Veteran has suffered from left knee arthritis since 1991. Thus, the Veteran’s left knee has been long standing. Therefore, the Board finds that a remand is warranted to ensure compliance with the previous remand. The matters are REMANDED for the following action: 1. Obtain a supplemental VA opinion from a VA examiner who has not previously examined the Veteran, to determine the nature and etiology of the Veteran’s right knee disability. The entire claims folder, including a copy of this Remand, should be made available to and reviewed by the examiner. The examiner is then specifically instructed to provide the following opinions: Is it at least as likely as not (50 percent probability or greater) that any diagnosed right knee disability was incurred in or otherwise related to active-duty service, or was a result of an injury incurred or aggravated in the line of duty during a period of ACDUTRA or INACDUTRA? The examiner should discuss the Veteran’s credible lay statements indicating that he sustained an injury after his parachute landing falls. Is it at least as likely as not (50 percent probability or greater) that any diagnosed right knee disability was caused by or aggravated by the service-connected left knee disability? The examiner should note that this question requires two separate opinions: one for causation and a second for aggravation. The term “aggravation” means a permanent worsening of the disability beyond its natural progression. In providing the above opinions, the examiner is requested to review all pertinent records associated with the claims file. A clear rationale for all opinions is requested and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Obtain a supplemental VA opinion from a VA examiner who has not previously examined the Veteran, to determine the nature and etiology of the Veteran’s low back disability. The entire claims folder, including a copy of this Remand, should be made available to and reviewed by the examiner. The examiner is then specifically instructed to provide the following opinions: Is it at least as likely as not (50 percent probability or greater) that any diagnosed low back disability was incurred in or otherwise related to active-duty service, or was a result of an injury incurred or aggravated in the line of duty during a period of ACDUTRA or INACDUTRA? The examiner should discuss the Veteran’s statements and his buddy statements, indicating that he sustained an injury after his jeep accident. Is it at least as likely as not (50 percent probability or greater) that any diagnosed low back disability was caused by or aggravated by the service-connected left knee disability? The examiner should note that this question requires two separate opinions: one for causation and a second for aggravation. The term “aggravation” means a permanent worsening of the disability beyond its natural progression. (Continued on the next page)   In providing the above opinions, the examiner is requested to review all pertinent records associated with the claims file. A clear rationale for all opinions is requested and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.