Citation Nr: A20007343 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 190805-41470 DATE: April 30, 2020 REMANDED Entitlement to service connection for a back disability, to include claimed secondary to a service-connected right foot disability, is remanded. Entitlement to service connection for a right knee disability, to include claimed secondary to a service-connected right foot disability, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1981 to March 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law created a new framework for veterans dissatisfied with VA’s decision on their claim to seek review. In March 2019, the Board remanded the claims for further development. Following the issuance of a Supplemental Statement of the Case (SSOC) on July 23, 2019, the Veteran selected the Direct Review option when he opted-into the AMA review system by submitting VA Form 10182 in August 2019. Accordingly, the Board will consider the evidence of record as of the date of the July 23, 2019 SSOC. 1. Entitlement to service connection for a back disability is remanded. 2. Entitlement to service connection for a right knee disability is remanded. The June 2019 VA examiner opined that it was less likely as not that the Veteran’s back and right knee disabilities were proximately due to or the result of his service-connected right foot disability because the two conditions were not related, with no medical literature to support such a relationship. However, the Board finds that this opinion is inadequate, as the examiner only generally states that the two conditions are not medically related and are separate entities and that the medical literature did not support a medical relationship but did not address the specific facts of the case. See Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018) (a medical opinion that relies on the absence of general medical literature supporting nexus without discussing the specific facts of the case is inadequate). Moreover, the examiner did not provide sufficient rationale in addressing secondary service connection based on aggravation. Therefore, the Board finds that this is a pre-decisional duty to assist error warranting an addendum opinion on remand. 3. Entitlement to a TDIU is remanded. The Board finds that the Veteran’s claim for TDIU is inextricably intertwined with the issues above and must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The matters are REMANDED for the following action: 1. Refer the claims file to a VA examiner other than the July 2019 examiner, preferably a physician, for preparation of an addendum opinion as to the etiology of the Veteran’s back and right knee disabilities. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s back and/or right knee disability: (a) had its onset in or is otherwise related to service (please consider the Veteran’s statements as to any onset or continuity of symptomatology (see November 2011 VA examination report), and do not rely solely on the lack of documented treatment in support of your opinion); (b) is proximately due to his service-connected right foot hallux valgus with bunion, arthrosis, and metatarsalgia, to include as a result of altered gait; or (c) has been aggravated (worsened beyond natural progression) by his service-connected right foot hallux valgus with bunion, arthrosis, and metatarsalgia, to include as a result of altered gait. In addressing (b) and (c), please note there is no temporal requirement that the primary condition (right foot disability) be service-connected, or even diagnosed, at the time the secondary condition (back and/or knee disability) is incurred, and reliance on this fact will render any opinion inadequate. Please provide a complete rationale based on medical principles to support any conclusions reached. 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). 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined TDIU issue. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.