Citation Nr: 21001677 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 13-19 265 DATE: January 11, 2021 ISSUES Entitlement to a disability rating in excess of 10 percent for service- connected right knee anterior cruciate ligament tear, status post-surgery with osteoarthritis and history of instability. Entitlement to service connection for a lumbar spine disorder, to include as secondary to service- connected disorders of the right knee and right ankle. REMANDED Entitlement to a disability rating in excess of 10 percent for service- connected right knee anterior cruciate ligament tear, status post-surgery with osteoarthritis and history of instability is remanded. Entitlement to service connection for a lumbar spine disorder, to include as secondary to service- connected disorders of the right knee and right ankle is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1991 to March 2003. This matter arises from an appeal to the Board of Veterans’ Appeals (Board) of a September 2009 rating decision issued by the Department of Veteran’s Affairs Regional Office (RO). In August 2019, the Board denied the claim for an increased rating in excess of 10 percent for his right knee anterior cruciate ligament tear and remanded the issue of service connection for a lumbar spine disorder. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the part of the August 2019 Board decision which denied the Veteran’s claim for an increased rating in excess of 10 percent for his right knee anterior cruciate ligament tear. The JMPR found that the Board’s August 2019 decision erred when it failed to provide the Veteran with an adequate examination which properly addressed the issue of an increased rating for his knee disability. Additionally, the parties agreed that the Board erred in providing inadequate reasons or bases in weighing the credibility of the Veteran’s lay statements. After vacating the Board’s decision, the case was remanded pursuant to 38 U.S.C. § 7252 (a) for readjudication of the issue of entitlement to an increased rating, consistent with the JMPR. The Board finds that evidentiary development is still required before the claims on appeal can be adjudicated. 1. Entitlement to a disability rating in excess of 10 percent for service- connected right knee anterior cruciate ligament tear, status post-surgery with osteoarthritis and history of instability is remanded. The Veteran contends that his service-connected right knee disability is more severely disabling than reflected in the currently assigned 10 percent rating. As further discussed below, the Board finds that an adequate medical opinion must be obtained upon remand concerning the this issue on appeal. The Veteran was last afforded a VA examination in March 2017 to assess the severity and extent of his right knee disability, which the Board relied upon in its August 2019 denial for an increased rating. Pursuant to the JMPR the parties agreed that the March 2017 VA examination was inadequate to permit the Board to issue a fully informed decision. Specifically, the parties agreed that the VA examination does not indicate that range of motion testing was performed on active or passive motion, nor does it determine whether there was pain on weight-bearing and non-weight-bearing, pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016). Therefore, upon further review of the March 2017 VA examination, the Board finds that the March 2017 VA examination did not comply with Correia, and is therefore inadequate for adjudication purposes. Accordingly, in order to comply with the Court's ruling in Correia, a new examination should be obtained on remand that addresses CAVC's directive. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, although the March 2017 VA examiner reported normal stability testing, the Board notes that the Veteran has reported symptoms of right knee instability over the period on appeal, as well as the use of a knee brace. The Veteran is competent to report his symptoms of instability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Court in English has held that the Board must consider lay testimony of knee instability when considering whether to assign a rating under Diagnostic Code 5257 regarding the presence of knee lateral instability. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). As such, upon remand the examiner should not only assess any right knee lateral instability found, but should illicit from the Veteran a complete description of the instability experienced, and provide an opinion as to whether such reported instability is consistent with the objective manifestations of such found on examination, and provide a rationale for any such assessment. 2. Entitlement to service connection for a lumbar spine disorder, to include as secondary to service- connected disorders of the right knee and right ankle is remanded. The Veteran contends he suffered back pain during boot camp in 1992 and he contends the pain has continued since his service. Alternatively, he contends his current back pain is aggravated by his service-connected right knee and/or right ankle disabilities. This issue was most recently remanded in August 2019 for a new medical nexus opinion to be obtained. In rendering an opinion, the examiner was directed to specifically consider the Veteran’s lay statements as well as a July 2013 private treatment statement which opined that the Veteran’s back disorder was related to his right knee disability. The examiner was also to consider VA treatment records, including a June 2010 notation which reported compensation in gait due to his right knee. In November 2019, the VA examiner provided an addendum opinion which provided a negative nexus opinion on the issue of secondary service connection for the Veteran’s lumbar spine disability. The Board finds however that the outcome of the unresolved claim for an increased rating for right knee which is being remanded could significantly impact the issue of entitlement to service connection for the lumbar spine disability. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Therefore, a final decision on this issue cannot be rendered at this time. Id. As these issues are inextricably intertwined a remand for this issue is required. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated private or VA medical records identified and authorized for release by the Veteran. 2. Schedule the Veteran for a new VA examination with a VA medical professional with expertise in orthopedics, and to determine the current nature and severity of his right knee anterior cruciate ligament tear. The claims folder must be made available to the examiner in conjunction with the examination. Any appropriate evaluations, studies, and testing deemed necessary by the examiner, to include appropriate imaging, should be conducted. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner is to specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for each of the joints in question. See Correia v. McDonald, 28 Vet. App. 158 (2016). The VA examiner should conduct, consistent with 38 C.F.R. § 4.59, range-of-motion testing and provide commentary regarding symptoms, including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. Any additional loss of motion with repetitive movement must be noted. The examiner should specifically comment on the Veteran's use of a knee brace and its purpose (i.e., for support, for mobility, for weight-redistribution, for instability, for pain-relief, to prevent injury, etc.). The examiner must reconcile any finding of instability with any reports of such, and with his use of a brace. The examiner should also indicate whether there are any symptom(s) or impairment associated with the knee disabilities that are not encompassed by the schedular criteria. 3. In light of the findings found in the new examination, obtain a VA opinion with respect to the Veteran's lumbar spine disability claim. The medical professional must provide an opinion addressing the following: (a) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s lumbar spine disability had its onset during active service or is caused or aggravated by any in-service disease, event, or injury. In offering an opinion the examiner should specifically address the Veteran’s lay statements of continuity of symptomatology from service. (b.) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s lumbar spine disability has been aggravated (i.e., increased in severity) by the Veteran's service-connected right knee and right ankle disabilities. In providing the requested opinions, the clinician should also consider and discuss the July 2013 medical statement well as the June 2010 VA treatment record which reports compensation in gait due to the Veteran’s right knee. The examiner must also remain mindful that a recent precedent case clarified that secondary service connection does not require "permanent" worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition's natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). (c.) If aggravation is found, the examiner should address the following medical issues to the extent possible: (1) the baseline manifestations of the Veteran's disabilities found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately caused by the service-connected disability. 4. Thereafter, readjudicate the issue on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Nettey, 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.