Citation Nr: 21000790 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-29 174 DATE: January 6, 2021 ORDER Entitlement to service connection for intervertebral disc syndrome and degenerative disc disease of the lumbar spine injury is granted. FINDING OF FACT The weight of the probative evidence of record is in equipoise as to whether the Veteran’s lower back disability began during active service, as a result of an inservice injury. CONCLUSION OF LAW The criteria for service connection for intervertebral disc syndrome and degenerative disc disease of the lumbar spine injury have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REMANDED Entitlement to service connection for left knee disability is remanded. Entitlement to service connection for right knee disability is remanded. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from January 1986 to May 1989. This case is before the Board of Veterans’ Appeals (Board) from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans’ Law Judge at a January 2020 hearing. In February 2020, the Board found new and material evidence had been received since the June 1991 rating decision and granted the petition to reopen these claims. The claims were remanded to the RO for additional development to include obtaining private medical records, Social Security Administration records, and addendum medical opinions for the back and knees. A release request was sent to the Veteran (3/05/2020 Subsequent Development Letter), additional evidence was received from the Veteran (9/03/2020 Medical Treatment Record - Government Facility; 9/08/2020 Photographs; 9/08/2020 Medical Treatment Record - Non-Government Facility), and the Veteran’s representative indicated all evidence has been presented (9/16/2020 Third Party Correspondence). SSA records have been obtained (3/13/2020 Medical Treatment Records - Furnished by SSA), as have VA addendum opinions (10/02/2020 C&P Exam). Although additional development was completed, the addendum opinions obtained are not adequate. Accordingly, the Board cannot find substantial compliance with prior remand directives in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998) and additional remand is required. 1. Service connection for lower back The Veteran contends that her back was injured during service when lifting a patient from a gurney during (1/13/2020 Hearing Transcript, pg. 5). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Board concludes that the Veteran has a current disability that is related to in-service injury. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The April 2016 VA examination shows the Veteran has a current diagnoses of intervertebral disc syndrome and degenerative disc disease of the lumbar spine (4/27/2016 C&P Exam, pg. 2). During service, the Veteran was seen for complaints of lower back pain and discomfort (12/14/1990 STR – Medical, pgs. 28 and 36). Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes April 2016 VA opinion and an August 2020 addendum opinion. The April 2016 examiner found it less likely than not that current symptoms could be related to strains that occurred over two decades ago. The examiner considered that there was no documented treatment or longitudinal history of back pain from 1988 until present to support an ongoing of progressive condition. In addition, upon separation from the military in 1988 the claimant denied having or having had any recurrent back pain and the clinical examination at that time was normal. The August 2020 examiner explained with no diagnosis or treatment from January 1991 to April 2016, it was deemed less likely than not that the Veteran’s present IVDS and degenerative disc disease, lumbar spine, were due to the heavy lifting noted while in service (8/10/2020 C&P Exam, pg. 4). The evidence in favor of the claim includes the Veteran’s hearing testimony of post service treatment for continued problems with her knees and back, and her belief the genesis of all of her back pain goes back to the episodes in service (1/13/2020 Hearing Transcript, pg. 12). A May 2014 letter from a VA physician noted the Veteran’s lumbar spine x-ray indicated mild multilevel degenerative disc disease in the mid-lower spine and opined in general terms that her inservice injuries contribute to her current condition (6/20/2016 Medical Treatment Record - Government Facility). An October 2020 addendum opinion considered the Veteran’s medical history to include complaints of and treatment for lower back pain multiple times during her military career including on July 20, 1987, June 30, 1988, and July 1, 1988. The examiner opined it is at least as likely as not that the Veteran’s lower back condition incurred in or was caused by the claimed in service injury event or illness (10/02/2020 C&P Exam, pg. 4). Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current diagnoses of intervertebral disc syndrome and degenerative disc disease of the lumbar spine is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for intervertebral disc syndrome and degenerative disc disease of the lumbar spine is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service connection for left knee disability. 2. Service connection for right knee disability. The Veteran contends that her left and right knees were injured during service, lifting patients, and her left knee was injured during an automobile accident in 1988. She indicated that she obtained treatment for her knees after service, in 1989, and continued to have problems. She reports having been seen at a VA clinic 1989 to 1997, after service (1/13/2020 Hearing Transcript, pgs. 9-10). She also sought private treatment from specific physicians and Peachtree Orthotics for her knees (1/13/2020 Hearing Transcript, pgs. 9-11; 9/03/2020 Medical Treatment Record - Government Facility) The Veteran has a current diagnosis of degenerative arthritis of the right and left knees from April 13, 2016, and left knee calcified tendonitis (4/27/2016 C&P Exam, pgs. 2 and 3). The April 2016 VA examination and accompanying opinion do not address the Veteran’s lay statements of record or the post service medical records. Addendum opinions provided negative nexus opinions addressing whether the Veteran’s knock knees, as noted upon entry, had been aggravated by service, but did not address the Veteran’s lay statements of record, additional private medical records obtained, or the May 2014 letter of record that the Veteran’s documented in-service injuries contribute to her current degenerative arthritis of the right and left knees from April 13, 2016, and left knee calcified tendonitis. Additionally, a medical opinion is needed to address whether the Veteran’s left and right knee disabilities are related to her now service-connected lower back disability. In light of the forgoing, remand is required to obtain a new VA examination. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriately qualified clinician to determine the nature and etiology of any existing left knee or right knee disability to include the Veteran’s diagnoses degenerative arthritis of the right and left knees and left knee calcified tendonitis that are of record. The examiner should review the entire claims file and this remand in conjunction with the examination. The examiner is requested to render an opinion as to whether it is at least as likely as not (i.e., a likelihood of 50 percent or more) that any currently diagnosed right and knee disorder/disability is a result of service or any incident occurring during service. The examiner must address the Veteran’s July 1987 compliant of left knee pain, and injuries sustained in a March 1988 automobile accident. The examiner should also provide an opinion as to whether the Veteran’s left or right knee disability is at least as likely as not (50 percent probability) proximately due to her service-connected lower back disability. The examiner should also address whether it is as likely as not (50 percent probability) that the Veteran’s service-connected lower back disability has aggravated her right or left knee disability beyond its natural progression. If aggravation is found, the examiner should identify baseline level of disability prior to such aggravation. If the examiner cannot provide an opinion as to baseline without resorting to speculation, he or she should provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional should explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The examiner may provide an estimate of the baseline, or any opinion, and indicate his or her confidence in the answers provided on a scale from 1 to 5, with 1 being the least confident and 5 being the most confident, and explain what factors affect the confidence level assigned. The examiner is reminded that a reason must be provided if the Veteran’s lay reports are rejected. Lay statements cannot be rejected solely due to a lack of medical documentation. If there is a medical reason to accept or not accept the Veteran’s contentions, the examiner should provide them. If the absence of medical documentation is relevant, the relevance must be explained because the absence of evidence is not positive evidence of the existence or non-existence of an event. If the examiner is able to gather additional understanding or information regarding the circumstances or timing of the onset of the Veteran’s current diagnosis, the examiner should include that information in his remarks. (Continued on the next page)   The examiner should reconcile any conflicting medical evidence of record to the extent possible, to include the May 2014 physician letter stating the Veteran’s inservice injuries contribute to her current condition. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. A. Myers 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.