Citation Nr: 20009883 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 10-41 556 DATE: February 5, 2020 REMANDED Entitlement to service connection for a low back disorder is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from April 1970 to March 1974. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision of the Detroit, Michigan Department of Veteran Affairs (VA) Regional Office (RO). In July 2011, a hearing was held before a Decision Review Officer (DRO) at the RO. In August 2016, a Board hearing was held before the undersigned. Transcripts of these hearings are associated with the Veteran’s claims file. This matter was previously before the Board in February 2016, when it was reopened and remanded for additional development. In July 2018, the Board denied service connection for a low back disorder. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In September 2019, the Court granted a Joint Motion for Remand (Joint Motion), vacated the July 2018 decision and remanded the appeal to the Board for action consistent with the Joint Motion. The Veteran claims that his low back disorder is related (secondary) to his service-connected right knee disability. As instructed by the February 2017 Board remand, a March 2018 VA examination report with medical opinion was obtained to address this medical question. In the September 2019 Joint Motion, the parties agreed that the aggravation opinion provided in the March 2018 examination report is inadequate for rating purposes because the examiner was provided the “wrong legal standard” for aggravation. Specifically, in the February 2016 Board remand instructions, aggravation was defined as a “permanent worsening.” The parties agreed that recent caselaw has indicated that “[a] ‘permanent worsening’ standard has no application in cases involving an incremental increase in disability of a non-service-connected condition proximately due to or the result of a service-connected disease or injury.” Ward v. Wilkie, 31 Vet. App. 233 (2019). Thus, an additional opinion is needed. The Joint Motion also notes that “VA treatment records reflect various potentially relevant records scanned into the VistA imaging system that were not associated with the record.” On remand, complete updated treatment records should be obtained. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claim, to include all relevant treatment records scanned into the VA VistA Imaging System. In particular, please print and add to the Virtual file the following documents scanned into the VistA Imaging System: February 20, 2018 Non-VA Note; May 19, 2017 Non-VA Note; November 4, 2011 Non-VA Note; January 7, 2011 Urgent Care Note; September 22, 2010 Urgent Care Note. 2. After the action in paragraph 1 is determined to be complete, please obtain a supplemental medical opinion as to the following: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s low back disorder has been aggravated (i.e. worsened in degree of severity) by his service-connected right knee disability? If aggravation is present, the opinion provider should indicate, to the extent possible, the approximate level of back disability (i.e., a baseline) before the onset of the aggravation. In responding, the examiner is requested to consider and address as necessary the January 2010 private medical record of “back strain in patient with preexisting back problems” after falling as a result of right knee instability. Please note that the worsening/aggravation need not be permanent. The clinician must provide complete rationales for all opinions and conclusions reached. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Hughes 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.