Citation Nr: 20054482 Decision Date: 08/18/20 Archive Date: 08/18/20 DOCKET NO. 16-22 367 DATE: August 18, 2020 REMANDED Entitlement to service connection for a back condition, including as secondary to service-connected bilateral knee arthritis, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1979 to April 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. In October 2018, the Board remanded to obtain outstanding treatment records and a VA examination. A Board remand confers on a claimant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D’Aires v. Peake, 22 Vet. App. 97, 105 (2008) (holding that substantial compliance, not strict, is required under Stegall). As will be discussed below, the Board finds substantial compliance with the remand directives has not been met. Entitlement to service connection for a back condition, including as secondary to service-connected bilateral knee arthritis, is remanded. The Veteran contends her back condition is caused or aggravated by her service-connected bilateral knee arthritis including as a result of a change in gait; or, alternatively, her back condition occurred during service or is a result of an in-service motor vehicle accident. The Board finds the evidence is insufficient to resolve the Veteran’s claim. Secondary Service Connection In October 2018, the Board remanded for a medical opinion specifically including a directive to address whether the Veteran’s back disorder was caused or aggravated by her service-connected knee disability. Upon review of the record, it appears the VA examiner was incorrectly instructed to address pre-existing conditions. The Board notes the Veteran is presumed sound at entrance. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The July 2019 VA examiner failed to complete the section on secondary service connection including causation and aggravation. Instead, the examiner, in error, only completed the section related to whether the Veteran’s back condition was aggravated by a pre-existing condition. The July 2019 VA examiner included in the additional answers segment a negative aggravation opinion with the following rationale, “Any injury to her low back and knees at the time of the in[-]service MVA are separate conditions and one does not cause the other.” This opinion failed to address the Board’s remand directives. The examiner limited the analysis to discussion of the Veteran’s motor vehicle accident injuries rather than the Veteran’s current back and current service-connected knee disabilities. Further, the examiner’s rationale discussed only causation. The Court held that a VA examination does not adequately address aggravation for secondary service connection unless it rules out the possibility of aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). As such, this opinion lacks sound reasoning and has no probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that a medical opinion obtains probative weight from "factually accurate, fully articulated, sound reasoning for the conclusion"). Accordingly, an additional VA opinion on secondary service connection is needed. Direct Service Connection The Board’s October 2018 remand directed the examiner to opine whether it is at least as likely as not that the Veteran’s back condition had its onset in, or is otherwise related to, the Veteran’s military service. The July 2019 VA examiner, however, failed to provide an opinion regarding direct service connection in relation to the 1983 motor vehicle accident as well as the Veteran’s in-service medical history of recurrent back pain. As such, a direct service connection opinion must still be obtained. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records from March 2020 forward. 2. After obtaining any outstanding treatment records, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination is left to the examiner’s discretion. The examiner is to determine the nature and etiology of any back condition. The examiner should provide opinions, with complete rationales, addressing the following: Whether it is at least as likely as not (50 percent or greater probability) that any back disorder had its onset in, or is otherwise related to, the Veteran’s military service, including consideration of her 1983 motor vehicle accident and her 1983 report of medical history indicating recurrent back pain; Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed back disorder was caused or aggravated by the Veteran’s service-connected arthritis of the bilateral knees, including whether there has been a change in gait causing or aggravating her back condition; and, Whether the Veteran’s diagnosis of arthritis manifested within a year after separation from service. The VA examiner is cautioned that the term “aggravated,” as used in 38 C.F.R. § 3.310(b), does not require that there be “permanent worsening” of the nonservice-connected disability. Instead, secondary service connection is warranted for “any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence.” See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (Continued on the next page)   3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.C. Allen, Associate Counsel 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.