Citation Nr: 21066133 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 14-20 508 DATE: October 28, 2021 REMANDED Entitlement to service connection for a back condition, to include as secondary to service-connected bilateral knee conditions, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1977 to March 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision issued by a Department of Veterans Affairs (VA) regional office. This matter was previously remanded by the Board in December 2015, February 2018, and August 2019. Entitlement to service connection for a back condition, to include as secondary to service-connected bilateral knee conditions, is remanded. The Board regrets the delay associated with this remand, particularly as this matter has been the subject of three prior remands. However, based on a review of the evidence of record, the Board finds that another remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to conduct additional development. First, a remand is necessary as the evidence indicates that relevant VA records may not have been associated with the claims file. Specifically, the record indicates that the Veteran has received treatment at the Atlanta VA Medical Center (VAMC) since at least 1988. However, with the exception of interpretations of imaging studies, no records relating to treatment between 1988 and September 2002 have been associated with the claims file. See Atlanta VAMC records, received February 2012, September 2012, April 2014, June 2019, June 2019, November 2019, November 2019, November 2019, September 2020, and December 2020 in CAPRI. As such, a remand is necessary to ensure that all relevant VA treatment records have been obtained and associated with the electronic claims file. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Second, a remand is necessary to allow the AOJ to obtain an adequate opinion regarding the nature and etiology of the Veteran's claimed back condition. In December 2016, the Veteran underwent a VA examination in which the examiner opined that the Veteran's diagnosed lumbosacral strain was less likely than not related to his active duty service, noting that there was no evidence in the Veteran's service treatment records (STRs) of any injury to or complaint regarding the back. The examiner also opined that the Veteran's lumbosacral strain was less likely than not proximately due to or the result of his service-connected knee conditions as there was no gait or weight disturbance of sufficient severity to implicate such conditions as the etiology of his back condition. See December 2016 VA Back Conditions Disability Benefits Questionnaire (DBQ); December 2016 VA Medical Opinion DBQ. The February 2018 Board remand found this opinion to be inadequate as the examiner did not address the Veteran's diagnosed lumbar spine degenerative disc disease with stenosis. In January 2020, an addendum opinion was obtained from the December 2016 examiner, in which the examiner opined that the Veteran's back condition was less likely than not aggravated by his service-connected knee conditions. In support of this opinion, the examiner noted that there was no gait or weight bearing disturbance of sufficient severity to implicate the Veteran's knee condition as a source of any permanent aggravation of his back condition. See January 2020 VA Medical Opinion DBQ. However, the question is not whether the Veteran's back condition was permanently aggravated by the Veteran's service-connected knee conditions, but whether his back condition underwent an incremental increase, regardless of permanence, due to the Veteran's service-connected knee conditions. See Ward v. Wilkie, 31 Vet. App. 233, 240-41 (2019). As the examiner applied the wrong standard with respect to service connection on a secondary basis due to aggravation, the January 2020 addendum opinion is inadequate for adjudication purposes. In February 2020, a second addendum was obtained from the December 2016 examiner regarding service connection on a direct basis. In this addendum, the examiner noted that the Veteran's lay statements were considered, but that they did not supersede the absence of any STR evidence for the onset of a back condition related to an in-service injury or other condition. See February 2020 VA Addendum DBQ. In other words, the examiner elaborated on the June 2016 negative nexus by stating that the Veteran's lay statements regarding back pain during service did not outweigh the absence of in-service treatment records. However, the examiner did not provide a meaningful explanation as to why the absence of in-service documentation of a back condition outweighed the Veteran's lay statements. Furthermore, the examiner's role is not to weigh the evidence. Importantly, the Board notes that the Veteran is competent to report the onset and progression of symptomatology, and an opinion based on the absence of treatment records without consideration of competent lay reports is inadequate. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007). Moreover, as discussed above, potentially relevant VA records have not been associated with the claims. As such, the January 2020 and February 2020 addendums are inadequate as the examiner was unable to consider the Veteran's prior medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). For these reasons, the Board finds the January 2020 and February 2020 addendum opinions to be inadequate for adjudication purposes. As such, a remand is necessary to obtain an adequate opinion regarding the nature and etiology of the Veteran's claimed back condition. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, the Board finds that this issue poses a medical problem of such obscurity or complexity that an advisory opinion from an independent medical expert (IME) is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. Specifically, multiple VA opinions have been unable to adequately answer the question of the etiology of the Veteran's claimed back condition. The AOJ must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. Accordingly, the matter is REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the electronic claims file any outstanding pertinent medical records, whether VA or private, including all available records relating to treatment at Atlanta VAMC, to include from 1988 to 2002. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. After completing the development above, and any additional development warranted by the record, obtain an advisory medical opinion from an independent medical expert pursuant to 38 U.S.C. § 5109 and 38 C.F.R. § 3.328. The AOJ must follow its established procedures for requesting such an advisory opinion. The entire claims file must be provided to, and reviewed by, the physician. If the physician determines it to be necessary, an examination should be scheduled and any indicated tests, studies, or evaluations should be performed. The physician is asked to: (a.) If an examination is conducted, obtain the Veteran's detailed lay history, including onset and progression of symptomatology. (b.) For each diagnosed back condition, opine as to: i. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service; ii. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition was caused by a service-connected condition; and iii. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition underwent an incremental increase (aggravated), regardless of permanence, by a service-connected condition. (c.) In formulating the requested opinions, the physician is asked to consider and specifically address: i. The Veteran's assertion that he injured his back and knee when he stepped into a hole during service. See October 2011 VA Mental Conditions Examination. ii. The Veteran's assertion that he injured his back while doing push-ups during service. See Atlanta VAMC records; October 2011 VA Joints Examination. iii. The Veteran's assertion that he has had chronic back pain since service. See Atlanta VAMC records. iv. The Veteran's assertion that his service-connected knee conditions cause him to fall and injure or aggravate his back. See id.; August 2010 VA Knee Examination. v. The August 2010 examination's finding that the Veteran has an abnormal gait due to his service-connected knee conditions. vi. Are the Veteran's assertions consistent with medical knowledge or implausible. vii. Are the Veteran's reports about symptoms or an in-service injury align with how the disease or disability is known to develop. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the physician should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the physician should identify and specifically cite each reference material utilized. If the physician is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The physician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The physician is also advised that noting that a condition did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. (Continued on the next page) If any report or opinion does not include adequate responses to specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.