Citation Nr: 21003523 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 14-05 478 DATE: January 21, 2021 REMANDED Entitlement to service connection for a back disorder, to include as secondary to service-connected disabilities, is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected bilateral calcaneal bursitis since August 10, 2017, is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected left knee iliotibial band syndrome since August 10, 2017, is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected right knee iliotibial band syndrome since August 10, 2017, is remanded. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from July 1989 to July 1993. In August 2019, the Board denied the Veteran’s claim of entitlement to a back disorder, to include as due to service-connected disabilities, and his claims of entitlement to an initial rating in excess of 10 percent for service-connected bilateral calcaneal bursitis since August 10, 2017, left knee iliotibial band syndrome since August 10, 2017, and right knee iliotibial band syndrome since August 10, 2017. The Veteran filed an appeal to the U.S. Court of Appeals for Veterans Claims (CAVC) contesting the Board’s August 2019 decision. In July 2020, the CAVC granted a Joint Motion for Remand and, in so doing, remanded the Board’s August 2019 denials. In its decision, the CAVC found that the Board erred when it relied on the medical evidence of record which found the service-connected bilateral knee and bursitis claims did not warrant a higher disability rating. Specifically, the CAVC found the VA opinions failed to address the private medical opinions of record which opined in general terms as to the severity of the service-connected disabilities Further, the CAVC found that the Board erred by relying on the July 2012 and January 2018 VA medical opinions in denying service-connected for a back disorder. Specifically, the CAVC noted the VA opinions made findings as to the onset of the claimed disability which were contrary to the Veteran’s lay statements concerning onset, dismissed the Veteran’s lay statements because they were not supported by objective medical evidence, and did not consider the private medical opinions of record which opined simply that the back condition was “pre-existing from the military” and “not due to any issue” at the Veteran’s employment. Accordingly, the appeal has been remanded to the Board for action consistent with the CAVC decision. 1. Entitlement to service connection for a back disorder, to include as secondary to service-connected disabilities, is remanded. 2. Entitlement to an initial rating in excess of 10 percent for service-connected bilateral calcaneal bursitis since August 10, 2017 is remanded. 3. Entitlement to an initial rating in excess of 10 percent for service-connected left knee iliotibial band syndrome since August 10, 2017 is remanded. 4. Entitlement to an initial rating in excess of 10 percent for service-connected right knee iliotibial band syndrome since August 10, 2017 is remanded. After review of the record, the Board regrettably finds that a remand for further development is warranted. As discussed previously, both the July 2012 and January 2018 VA medical opinions regarding the Veteran’s claimed back disability is inadequate for decision purposes as a medical opinion cannot be deemed legally adequate without sufficient supporting rationale. The Board must remand for a medical addendum to address the concerns stated in the JMR to properly adjudicate the claim. See Stegall v. West, 11 Vet. App. 268 (1998) (as a matter of law, a remand by the Board confers on the Veteran the right to compliance with the remand orders). The new medical addendum should specifically address whether or not the Veteran’s claimed back disability is related to his active service and/or any of his service-connected disabilities. Further, the July 2020 JMR detailed that the Board erred by relying on January 2018 VA examination reports to determine the severity of the Veteran’s service-connected knee and heel disabilities as the reports failed to consider the June 2018 private opinion of record. Consequently, the Veteran must be afforded new VA examinations which take this private opinion into consideration. Additionally, upon remand, the Board must “reexamine the evidence of record, seek any other evidence the Board feels is necessary, and issue a timely, well-supported decision in this case.” Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991). The Board notes that since the August 2019 Board decision, the Veteran has submitted private medical treatment records which detail continued treatment for the Veteran’s back pain at the same time as his bilateral knee pain in support of his assertion that the claimed back disability is related to service-connected disabilities. 5. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is remanded. Finally, in addition to the foregoing, the Board must remand the Veteran’s claim of entitlement to a total disability rating due to individual unemployability (TDIU) as it is inextricably intertwined with the claims which are being remanded by the Board. Although the Veteran does not meet the schedular criteria for a grant of TDIU at this time, this may change if he is granted service connection for his claimed back disability or for his increased rating claims on appeal. Thus, the Veteran’s request for a TDIU should be considered together with the remanded claims. The matters are REMANDED for the following action: 1. Forward the claims file to an orthopedic specialist for an opinion addressing the Veteran’s claimed back disability. The Board notes that if the requested specialist(s) is/are not available in the local or near-regional area, the RO is allowed to utilize a clinician whose scope of credentials is as close to the requested specialist as possible. If the specialist is housed locally, the examining clinician may provide the specialist with a clinically appropriate case summary, either verbally or in writing, and then request the specialist provide a written opinion. The examiner should provide the following opinions: a. Whether it is as likely as not (a 50 percent or greater probability) that the Veteran’s claimed back disability is caused by or related to his active service. b. Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s claimed back disability is proximately due to or caused by any of his service-connected disabilities. c. Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s service-connected disabilities aggravated (i.e., increased in severity) his claimed back disability. The examiner must reconcile his/her opinion with the service treatment records which noted the Veteran’s service-connected foot and knee conditions were related to in-service injuries. The examiner should indicate that the record was reviewed. A complete rationale should be provided for all opinions given. If the examiner determines that it is less likely than not that the Veteran’s claimed back disorder is proximately due to, the result of, or aggravated by his service-connected disabilities, then the examiner must reconcile that opinion with the statements in the June 2018 private opinion that intimated the Veteran’s claimed back disorder is related to the Veteran’s service-connected disabilities. 2. Schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the current level of severity of the Veteran’s service-connected knee and heel disabilities. The electronic claims file must be made accessible to the examiner. All appropriate tests or studies should be completed, and all clinical findings should be reported in detail. In assessing the severity of the knee disabilities, the examiner should test for pain on both active and passive motion, in weight-bearing and non-weight bearing, and if possible, with the range of the opposite undamaged joint. (continued on next page) 3. Readjudicate the issues remaining on appeal, to include entitlement to a TDIU. If the benefits sought on appeal remain denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period of time in which to respond. Thereafter, return the appeal to the Board for appellate review. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Peden 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.