Citation Nr: 20041297 Decision Date: 06/17/20 Archive Date: 06/17/20 DOCKET NO. 13-24 969A DATE: June 17, 2020 REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for a right hip disorder is remanded. Entitlement to service connection for a left ankle disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1985 to November 1990. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board remanded them for further development in May 2015 and July 2018. 1. Entitlement to service connection for a low back disorder is remanded. The service connection claim for a low back disorder must be remanded for a new medical opinion, as explained below. The Board previously remanded this claim to obtain a new VA medical opinion as to whether the Veteran’s low back disability is secondary to his service-connected left knee disability or directly related to active service. See 38 C.F.R. §§ 3.303(a), 3.310. On the issue of secondary service connection, the examiner was asked to address whether leg length discrepancy and an abnormal gait due to the Veteran’s left knee disability caused or aggravated his low back disorder. Regarding direct service connection, the service treatment records show that in June 1987 the Veteran complained of mid-thoracic pain radiating to the low back, which was assessed as a muscle strain in the lower back. In April 1989, he reported severe pain in the sacral and coccyx region resulting from a fall. A coccyx fracture was ruled out based on an x-ray study. The examiner was instructed to address whether the Veteran’s low back disorder is related to these in-service symptoms. In the May 2019 VA medical opinion, the examiner stated that an opinion could not be provided on these issues without resort to mere speculation, stating that an orthopedist or neurosurgeon would have the appropriate expertise to render the requested medical opinion. The only explanation provided was that during the examination, the Veteran stated he was unable to bend his back when range-of-motion testing was attempted, and related that an orthopedist told him he would be paralyzed within a year due to his back. On remand, the agency of original jurisdiction (AOJ) must make appropriate efforts to obtain a medical opinion on the above issues from an orthopedist or neurosurgeon, given the May 2019 VA examiner’s statement. If a medical professional with such expertise is not available to render the opinion, then another attempt should be made to obtain the opinion from a medical professional who does not have such specialized expertise. In that case, if the clinician is able to provide the opinion, the clinician should explain why specialized expertise in orthopedics or neurosurgery is not necessary to render the opinion. 2. Entitlement to service connection for a right hip disorder is remanded. The service connection claim for a right hip disorder must be remanded for a new medical opinion, as explained below. The Board previously remanded this claim to obtain a new medical opinion as to whether the Veteran’s right hip disability has been caused or aggravated by leg length discrepancy and an abnormal gait due to his service-connected left knee disability. See 38 C.F.R. § 3.310. A VA examination was performed, and an opinion provided, in May 2019 pursuant to the Board’s remand. The Board finds that the May 2019 VA medical opinion is not adequate to make an informed decision, and does not comply with the Board’s prior remand directives. Specifically, the May 2019 medical opinion merely states that the evidence does not show “residual or chronic disability” with respect to the left knee. In fact, the evidence shows that the Veteran had ongoing left knee problems over many years culminating in a total left knee replacement, which was performed in August 2012. Moreover, the examiner did not address the Veteran’s leg length discrepancy and abnormal gait. These issues are documented in the record. For example, a March 2012 private bone length x-ray study showed a 2.6 centimeter leg length discrepancy, with the left side being shorter than the right; a March 1996 VA examination report also shows that the Veteran had an abnormal gait caused by a leg length discrepancy due to his left knee disability. In a November 2011 statement (VA Form 21-4138), the Veteran wrote that he constantly had to bear weight on his right leg due to his left knee disability. Regardless of whether the August 2012 knee replacement may have ameliorated these issues, it must still be determined whether the Veteran’s established history of leg length discrepancy with an abnormal gait and abnormal weightbearing due to his right knee disability may have caused or aggravated his right hip disability. In short, the May 2019 VA medical opinion is not based on an accurate history, and fails to address the issues identified in the Board’s prior remand regarding leg length discrepancy with an abnormal gait. Consequently, it is inadequate, and also fails to comply with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives); but see Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that Stegall requires only substantial compliance with remand orders, rather than absolute compliance). Moreover, the May 2019 VA opinion does not separately address the issue of whether the Veteran’s service-connected left knee disability aggravated his right hip disability, as instructed in the Board’s prior remand and as required for secondary service connection opinions. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (holding that a VA medical opinion regarding secondary service connection must expressly address the issue of aggravation). Accordingly, a new VA medical opinion must be obtained that adequately addresses the issues discussed above. 3. Entitlement to service connection for a left ankle disorder is remanded. The claim for service connection for a left ankle disability must be remanded for further records development and a new medical opinion, as explained below. The Veteran states that he fractured his left ankle in a fall when his left knee gave out due to instability. See November 2011 VA Form 21-4138; July 2015 VA Ankle Examination Report. The Board previously remanded the claim to request the Veteran to identify any pertinent records, and for an examination and opinion addressing whether his left ankle disability is secondary to his service-connected left knee disability. The Veteran underwent left ankle surgery in 2002, according to the July 2015 VA examination report. Records of that surgery, and any treating leading up to it, are not in the file. The Veteran states that he has been treated at the Battle Creek, Saginaw, and Detroit VA Medical Centers (VAMC’s) since 1990. See November 2011 VA Form 21-4138. The VA treatment records in the file generally do not date prior to 2005, with the exception of a few Saginaw VAMC records dated in May 2001 and then December 2003. The AOJ should make an additional effort to obtain records of the Veteran’s left ankle treatment and surgery from 2002. Toward this end, the Veteran should be asked to identify where he received the treatment and surgery. The AOJ should then attempt to obtain those records. Further, while the file shows that requests have been submitted to a number of VA facilities for the Veteran’s VA treatment records since the 1990’s, including Saginaw, Battle Creek, and Ann Arbor, it is not clear whether any Detroit VAMC records dated prior to 2008 have been requested. On remand, the AOJ should request those records, unless such a request has already been submitted and responded to by that facility. A new VA medical opinion must also be obtained. In the May 2019 VA opinion, the examiner opined that the Veteran’s left ankle disability was less likely than not related to the Veteran’s service-connected left knee disability because there was no medical evidence of record showing that the left ankle fracture was a result of the left knee giving way, and because medical records did not “substantiate any laxity” of the left knee. With regard to the absence of medical records pertaining to the left ankle fracture, the development discussed above may turn up such records and thus allow for a more informed opinion. The examiner’s statement that the medical evidence does not show laxity of the left knee is incorrect. While his August 2012 total left knee replacement may have stabilized the left knee, the medical evidence does show a history of laxity and instability of the left knee. More specifically, an April 1995 private treatment record reflects that the Veteran felt like his left knee was going to “give out” at any moment, and that he walked with an unstable gait out of fear that his knee would buckle. On examination, there was laxity to the anterior cruciate ligament, and the left knee was found to be “relatively unstable” compared to the right knee. The Veteran was diagnosed with a torn anterior cruciate ligament, and issued a knee immobilizer. Further, a May 2001 VA treatment record reflects the Veteran’s report that he had problems with his left knee “going out,” and a May 2005 VA examination report notes that the Veteran continued to have problems with pain and instability of the knee. According to that report, he believed that the instability of the knee contributed to a fracture of the left ankle. Thus, he clearly has had a history of laxity and instability of the left knee, which he states resulted in a fall and resultant fracture of the left ankle in 2002. The fact that he may no longer have instability of the knee has no bearing on whether that earlier history may have caused his 2002 ankle fracture and any current residual disability from that injury. Because the May 2019 VA medical opinion does not account for the pertinent history of left knee laxity and instability documented in the record, it is not adequate to make an informed decision. Accordingly, a new opinion must be obtained. The matters are REMANDED for the following action: 1. Request the Veteran to identify where his left ankle was treated in 2002 when he sustained the fracture, and where the 2002 surgery was performed. Appropriate efforts should be made to obtain any records sufficiently identified by him. 2. If not done already, submit a request to the Detroit VAMC for any records pertaining to the Veteran dated prior to 2008. The request and response received (if negative) must be documented for the file. 3. Add to the file any recent outstanding VA treatment records pertaining to the Veteran. 4. Low back disability: Obtain a VA medical opinion from an orthopedist, neurosurgeon, or a physician with similar expertise addressing direct and secondary service connection for the Veteran’s low back disability, as specified below. If a medical professional with such specialized expertise is not available, then another attempt should be made to obtain the opinion from a medical professional who does not have such specialized expertise. In that case, if the clinician is able to provide the opinion, the clinician should explain why specialized expertise in orthopedics or neurosurgery is not necessary to render the opinion (see May 2019 VA medical opinion stating that the opinion should be provided by an orthopedist or neurosurgeon). The clinician is asked to address the following issues: (a.) Direct service connection: Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s low back disability is related to disease or injury incurred in active service. The examiner must discuss the June 1987 service treatment record reflecting the Veteran’s complaint of mid-thoracic pain radiating to the low back, which was assessed as a muscle strain in the lower back. The examiner must also discuss the April 1989 record showing a report of severe pain in the sacral and coccyx region resulting from a fall; a fracture was ruled out based on an x-ray study. (b.) Secondary service connection: Whether it is at least as likely as not that the Veteran’s service-connected left knee disability caused or aggravated his low back disability, including as a result of leg length discrepancy and abnormal weightbearing. The examiner must separately address the issues of causation and aggravation. In this regard, a March 2012 private bone length x-ray study showed a 2.6 centimeter leg length discrepancy, with the left side being shorter than the right; a February 2012 VA examination report reflects a leg length discrepancy of 3 centimeters (94 cm for the left leg; 96 cm for the right leg); a March 1996 VA examination report reflects that the Veteran had an abnormal gait caused by a leg length discrepancy due to his left knee disability. The Veteran has stated that he constantly had to bear weight on his right leg due to his left knee disability. See November 2011 VA Form 21-4138). Although the August 2012 total knee replacement may have ameliorated these issues, the examiner must address that prior history in terms of whether it caused or aggravated the Veteran’s low back disability. If the examiner finds that the leg length discrepancy in itself would not altered the Veteran’s gait or posture enough to cause or aggravate his low back disability, the examiner must provide a complete explanation, and consider the article cited in the June 2018 appellant brief (Gait and Posture, Volume 12, Issue 2, 156-161 (2000)). The examiner must also still address whether abnormal weightbearing by placing undue weight on the Veteran’s right side (i.e. because he was “favoring” the left leg due to pain and instability) may have caused or aggravated his low back disability. 5. Right hip disability: Obtain a VA medical opinion as to whether it is at least as likely as not that the Veteran’s right hip disability has been caused or aggravated by his service-connected left knee disability, including due to a a leg length discrepancy and abnormal weightbearing. The examiner must separately address the issues of causation and aggravation. In rendering the opinion, the examiner must consider a March 2012 private bone length x-ray study showed a 2.6 centimeter leg length discrepancy, with the left side being shorter than the right; the February 2012 VA examination report reflecting a leg length discrepancy of 3 centimeters (94 cm for the left leg; 96 cm for the right leg); and a March 1996 VA examination report finding that the Veteran had an abnormal gait caused by a leg length discrepancy due to his left knee disability. The Veteran has stated that he constantly had to bear weight on his right leg due to his left knee disability. See November 2011 VA Form 21-4138). Although the August 2012 total knee replacement may have ameliorated these issues, the examiner must address that prior history in terms of whether it caused or aggravated the Veteran’s right hip disability. If the examiner finds that the leg length discrepancy in itself would not altered the Veteran’s gait or posture enough to cause or aggravate his right hip disability, the examiner must provide a complete explanation, and consider the article cited in the June 2018 appellant brief (Gait and Posture, Volume 12, Issue 2, 156-161 (2000)). The examiner must also still address whether abnormal weightbearing by placing undue weight on the Veteran’s right side (i.e. because he was “favoring” the left leg due to pain and instability) may have caused or aggravated his right hip disability. 6. Left ankle disability: After obtaining any records of the 2002 treatment and surgery of the Veteran’s left ankle fracture, or if it is determined that further efforts to obtain such records are not warranted, obtain a new VA medical opinion on the issue of secondary service connection, as specified below. The examiner is asked to provide an opinion as to whether it is at least as likely as not that the Veteran has a current left ankle disability from being fractured in a fall in 2002 which was reportedly caused by giving way of the left knee due to his service-connected left knee disability. The Veteran’s history of left knee laxity and instability is documented in the record. An April 1995 private treatment record reflects that he felt like his left knee was going to “give out” at any moment, and that he walked with an unstable gait out of fear that his knee would buckle. On examination, there was laxity to the anterior cruciate ligament, and the left knee was found to be “relatively unstable” compared to the right knee. The Veteran was diagnosed with a torn anterior cruciate ligament, and issued a knee immobilizer. A May 2001 VA treatment record reflects the Veteran’s report of problems with his left knee “going out,” and a May 2005 VA examination report notes that he continued to have problems with pain and instability of the knee. The examiner must take that above history of left knee instability into account in rendering the opinion. J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Mohammad 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.