Citation Nr: 21066698 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-12 230 DATE: November 1, 2021 REMANDED Entitlement to service connection for a lower back disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a cervical spine (neck) disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a left knee disability, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1975 to November 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision and an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided sworn testimony before the undersigned Veterans Law Judge (VLJ) at a September 2017 hearing. A copy of the hearing transcript has been associated with the electronic claims file. By way of history, in a November 2019 Board decision, entitlement to service connection for the lower back disability, neck disability, left knee disability, hearing loss, and tinnitus were remanded for further development. Subsequent to the 2019 Board remand development, in an August 2020 rating decision, the Veteran's claim for service connection for left ear hearing loss was granted with a noncompensable rating effective August 15, 2012; bilateral hearing loss was granted with a noncompensable rating effective March 5, 2020; and tinnitus was granted with a ten percent rating, effective August 15, 2012. As such, those issues are no longer on appeal. As for the claims for service connection for a low back disability, neck disability, and left knee disability, although the Board sincerely regrets the additional delay, a remand is necessary to afford the Veteran due process of law and to ensure that there is a complete record upon which to decide the Veteran's appeal, so that he is afforded every possible consideration. See 38 U.S.C. § 5103a; 38 C.F.R. § 3.159. First, the 2019 remand directives instructed the RO to obtain the medical records from Wilford Hall Medical Center; although the records were requested, it was noted that the records could not be obtained because the Veteran did not provide the contact information required to request records as a dependent of his military spouse. If he wants VA to request these records, he must respond to the December 2019 letter the RO sent him requesting information on his spouse. Second, the Board notes that multiple medical examinations and opinions were obtained as to the left knee disability, back disability, and neck disability, to include in January 2020, August 2020, September 2020, and January 2021. However, the opinions contradict each other and failed to comply with the remand directives. 1. Back Disability Specifically, as to the back claim, the Board finds the opinions to be inadequate. First, as to the January 2020 opinion, although the examiner provided a current diagnosis of degenerative arthritis and invertebral disc disease of the spine, the opinion was conclusory with no rationale and was based on inaccurate medical history. For example, the examiner stated "during service, condition was acute only. There is no evidence of chronicity of care." However, this is simply not true as his service medical records showed multiple reports of back pain and assessments of back strain, and it fails to consider the 2014 statement from the Veteran that he had "over 500 missions loading patients on and off aircrafts... physically pull and lift... and hoist people over 300 [pounds] onto aircrafts..." and that he strained his back several times but never reported this "due to fear of losing flight status." Further, in August 2020, a VA examiner opined that the "Veteran sustained low back injuries prior to knee injuries and has continued low back pain aside from [right] knee total replacement. His low back pain and radiculopathy occurred during service jumps/med evac[uations]." The medical opinion in January 2021 also stated that the "Veteran's STRs show complaints of lower back pain post motor vehicle accident in May 1979 and again after jacking the aircraft. Veteran clearly injured his back during service. Therefore, his back condition is not due to or secondary to his right knee total replacement that occurred in 2019" (emphasis added). Therefore, the secondary service connection opinions rationales were based on the Veteran's back injury being due to service and not the right knee, which contradicts the January 2020 medical opinion. Additionally, as to the opinions for secondary service connection, the Board notes that the August 2020 and January 2021 examiners both based their opinions on the right total knee replacement surgery and did NOT consider the actual right knee disability prior to the surgery; importantly, the Veteran has been service-connected for the right knee medial meniscectomy with degenerative joint disease since August 2012, the date he filed a claim. Further, the 2021 examiner's rationale as to an antalgic gait due to the knee not causing or aggravating the Veteran's back is inadequate. First, the examiner contradicts herself: she stated "an antalgic gait in the knee does not lead to lower back problems unless it is severe over the course of several years" (emphasis added), but then stated there is not medical literature to support antalgic gait affecting the spine. Finally, the examiner opined that the Veteran did not have an abnormal gait until 2017. This is inaccurate; the VA medical records from Bay Pines beginning in 2000 show bilateral knee issues with abnormal gait and difficulty with walking was noted in 2008. As such, the Board finds that the VA examiners failed to expressly opine, with a clear rationale, whether the in-service complaints, injuries and/or treatment of the back are etiologically related to his current back disability, to include lower back pain and/or degenerative disc disease. Further, the Board notes that an opinion based on the fact a condition was normal at discharge is inadequate, as this does not preclude service connection being granted for a post-service condition if it is, in fact, related to the service injury. Therefore, an addendum opinion is requested on remand to consolidate the opinions of record, and the examiner must consider the aforementioned examinations and opinions, and determine whether the Veteran's current back disability is due to the in-service back injuries as noted by the August 2020 and January 2021 examiners, or whether the back disability was caused or aggravated by the right knee disability of medial meniscectomy with degenerative joint disease to include the abnormal gait caused by the knee beginning in 2008. 2. Neck Disability Similarly, as for the neck claim, the Board notes the diagnosis for cervical arthropathy and cervical radiculopathy of the bilateral upper extremities, but finds the opinions provided to be inadequate. First, as to the January 2020 opinion, the opinion was conclusory with no rationale. For example, the examiner stated: "the neck and knee are not anatomically related, there is no relationship between the two." The August 2020 opinion was similar: "the conditions of cervical spine condition and right knee total replacement are not medically related. The cervical spine condition is a separate entity entirely from the right knee total replacement and unrelated to it." Finally, in the September 2020 opinion, the examiner opined that while consideration of the Veteran asserting he overcompensated for his service-connected right knee which caused an abnormal gait, "knee conditions such as the Veteran's service-connected right knee total replacement are not medically known to affect the articulating joints of the cervical spine, hence no nexus is established and therefore less likely to cause, or aggravate the Veteran's diagnosed [neck disability]." Further, the August 2020 examiner also opined that the "Veteran's right knee total replacement has not impacted the original injuries that veteran sustained during service years to his cervical neck. Veteran had cervical sprain in 1980 and continued to have neck pain that he did not report. And those injuries likely resulted in his chronic neck pain today, not his right knee replacement" (emphasis added). This opinion appears to insinuate that the Veteran's neck disability may be directly due to service. In sum, the above opinions do not answer the questions requested in the 2019 Remand, but, as noted above, only focus on the 2019 total knee replacement instead of the totality of the right knee disability since service. As such, another remand is required to obtain an addendum opinion to consider direct service connection, as implied in the August 2020 opinion, as well as secondary to the service-connected right knee disability. 3. Left Knee Disability Finally, as to the left knee disability claim, the Board notes the diagnosis for bilateral meniscal tears and degenerative arthritis with artificial knee joints, but finds the opinions provided to be inadequate. First, as to the January 2020 opinion, the opinion was conclusory with no rationale, and was based on inaccurate medical history. Specifically, the examiner stated "during service, condition was acute only. There is no evidence of chronicity of care." However, this is simply not true as his service medical records showed multiple reports of bilateral knee pain, and it fails to consider the medical records from Bay Pines obtained which indicated ongoing complaints of and treatment for both left knee and right knee pain. For example, in February 2008 the doctor noted the Veteran had chronic knee pain and swelling and noted he has arthralgia, myalgias, weakness, and joint swelling. An MRI revealed bilateral medial meniscal tears, and an X-ray showed arthritic change of the left knee with a defect of the medial femoral condyle and partial absence of the menisci from prior surgery with a questionable meniscal fragment in the joint. In a March 2008 examination, the doctor noted that the Veteran was "complaining of pain in both knees. This man has a long history of problems with his knees and has had surgery on both knees the left arthroscopic and the right one open surgery. He was told he had torn menisci in both knees at the time he had his surgeries. He originally injured his left knee jumping out of a helicopter while in the military (emphasis added). Further, he had left knee arthroscopy in 1985. Additionally, as to the opinions for secondary service connection, the Board notes that the August 2020 and January 2021 examiners both based their opinions on the 2019 right total knee replacement surgery and did NOT consider the actual right knee disability symptoms prior to the surgery; importantly, the Veteran has been service-connected for the right knee medial meniscectomy with degenerative joint disease since August 2012, the date he filed a claim. The August 2020 examiner opined that the conditions of left and right knee degenerative arthritis are not medical related and that "arthritis, degenerative left and right and presence of artificial knee joint, left and right is a separate entity entirely from the right knee total replacement and unrelated to it." This contradicts itself, as the very reasoning behind the Veteran's right knee total replacement was his degenerative arthritis and is why he has an artificial right knee joint. Further, the August 2020 examiner than noted that the Veteran did have left knee injuries during jumps/med evacuations, but "independently from [right] knee." This is ambiguous and irrational, as it strains credulity that the Veteran would have injuries to his knees from the helicopter jumps that only adversely affected his right knee, not the left, as he would have used both legs to jump and land. The examiner then opined that "the Veteran's right knee problems continued over the years, but he continued to use his [left] knee more due to [right] knee pain. This at least as likely as not caused Veteran to wear out his [left] knee more quickly than [right] thereby having [left] knee total replaced in 2014 and [right] knee in 2019." However, the examiner then stated that the left knee condition was not caused or aggravated by right knee total replacement since this surgery was in 2019 and his left knee replacement occurred earlier in 2014. Additionally, the 2021 examiner's rationale as to an antalgic gait due to the right knee not causing or aggravating the Veteran's left knee is inadequate. First, the examiner stated there is not medical literature to support antalgic gait causes arthritis in the opposite joint. Further, the examiner opined that the Veteran did not have an abnormal gait until 2017, but the VA medical records from Bay Pines beginning in 2000 show bilateral knee issues with abnormal gait and difficulty with walking was noted in 2008. Finally, the examiner noted that the "Veteran's MOS duties to include his jumps may [have] led to some left knee pain and problems, however, the jumps that caused any RIGHT knee pain would not then lead to his LEFT knee pain due solely to RIGHT knee problems alone." As noted above, this is ambiguous and irrational. As such, the Board finds that the VA examiners failed to expressly opine, with a clear rationale, whether the in-service complaints, injuries and/or treatment of the left knee are etiologically related to his current left knee disability. Further, the Board notes that an opinion based on the fact a condition was normal at discharge is inadequate, as this does not preclude service connection being granted for a post-service condition if it is, in fact, related to the service injury. Therefore, an addendum opinion is requested on remand to consolidate the opinions of record, and the examiner must consider the aforementioned examinations and opinions, and determine whether the Veteran's current left knee disability is due to the in-service knee injuries as noted by the August 2020 examiner, or whether the left knee disability was caused or aggravated by the right knee disability of medial meniscectomy with degenerative joint disease to include the abnormal gait caused by the knee beginning in 2008 and for overcompensating his left knee due to the service-connected right knee. Again an opinion based solely on how the 2019 total knee replacement may have affected the left knee is not adequate but must be based on the totality of the right knee disability prior to the surgery. The matters are REMANDED for the following action: 1. Obtain VA medical records for the period July 2020 to present. 2. Forward the electronic claims file and a copy of this REMAND to the 2021 VA examiner, or another examiner if that examiner is not available, to obtain an addendum opinion regarding the Veteran's back disability. The examiner must note his or her review of the complete claims file and should review this remand for a discussion as to why the prior opinion was inadequate. Examination of the Veteran is not required, unless the VA examiner determines an in-person examination is necessary to provide the below-requested opinion. Following a complete review of the electronic claims file, the examiner must provide an opinion as to: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current back disability is related to an in-service injury, event, or disease, to include the documented in-service injury? (b.) Whether it at least as likely as not that his current back disability is proximately due to his service-connected right knee disability (consideration of the symptoms PRIOR to the 2019 total knee replacement must be given)? (c.) Whether it at least as likely as not that his current back disability is aggravated beyond its natural progression by his service-connected right knee disability (consideration of the symptoms PRIOR to the 2019 total knee replacement must be given)? The examiner should specifically cite to any evidence that supports this opinion. The examiner is advised that a "permanent" worsening or increase in severity of the currently diagnosed back disability is NOT required to demonstrate "aggravation." Rather, aggravation is shown if there is any incremental increase in disability, meaning any additional impairment of earning capacity above the degree of disability existing before the increase, in a nonservice-connected disability resulting from a service-connected disability, regardless of its permanence. The examiner is also asked to consider the following: the Veteran's STR's which showed he had lower back pain after a motor vehicle accident in May 1979 and several complaints of lower back pain after jacking the aircraft in 1979; the Veteran's MOS duties during service included multiple jumps from the helicopter and carrying gurneys; February 2008 VA medical records show that he had chronic bilateral medial meniscal tears with pain and swelling which caused arthralgia, myalgia, weakness, and swelling, and that he had an antalgic gait; The Veteran's lumbar spine MRI in 2011 showed "Multilevel degenerative discopathy/facet joint arthropathies associated with annular disc bulges with secondary central spinal canal stenosis and neuroforaminal narrowing at the specific levels; 2011 Xray lumbar spine: "Lumbar spine spondyloarthropathy with disc space narrowing L5-S1 could be associate with disc derangement; the 2014 statement from the Veteran that he had "over 500 missions loading patients on and off aircrafts... physically pull and lift... and hoist people over 300 [pounds] onto aircrafts..." and that he strained his back several times but never reported "due to fear of losing flight status." The Veteran's testimony at the 2017 Board hearing that the constant pulling and loading of patients on gurneys onto aircraft hurt his neck and lower back, including the Veteran's statement that he fell off an aircraft and hurt his back, and two incidents where he missed his step and fell off the aircraft onto his backside; the Veteran's testimony at the Board hearing and statement in the March 2014 and the 2017 Form 9 that he overcompensated from his service-connected right knee condition which caused an abnormal gait which affected his back; The August 2020 examiner's opinion that "His low backpain and radiculopathy occurred during service jumps/med evacs"; and The January 2021 examiner's opinion: "Veteran's MOS duties to include his jumps may have led to some back pain/problems" and that the "Veteran's STRs show complaints of lower back pain post motor vehicle accident in May 1979 and again after jacking the aircraft. Veteran clearly injured his back during service". The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran's reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Rationale must be provided for opinions proffered. If the examiner determines a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. 3. Forward the electronic claims file and a copy of this REMAND to the September 2020 VA examiner, or another examiner if that examiner is not available, to obtain an addendum opinion regarding the Veteran's neck disability. The examiner must note his or her review of the complete claims file and should review this remand for a discussion as to why the prior opinion was inadequate. Examination of the Veteran is not required, unless the VA examiner determines an in-person examination is necessary to provide the below-requested opinion. Following a complete review of the electronic claims file, the examiner must provide an opinion as to: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current neck disability is related to an in-service injury, event, or disease, to include the documented in-service injury? (b.) Whether it at least as likely as not that his current neck disability is proximately due to his service-connected right knee disability (consideration of the symptoms PRIOR to the 2019 total knee replacement must be given)? (c.) Whether it at least as likely as not that his current neck disability is aggravated beyond its natural progression by his service-connected right knee disability (consideration of the symptoms PRIOR to the 2019 total knee replacement must be given)? The examiner should specifically cite to any evidence that supports this opinion. The examiner is advised that a "permanent" worsening or increase in severity of the currently diagnosed neck disability is NOT required to demonstrate "aggravation." Rather, aggravation is shown if there is any incremental increase in disability, meaning any additional impairment of earning capacity above the degree of disability existing before the increase, in a nonservice-connected disability resulting from a service-connected disability, regardless of its permanence. The examiner is also asked to consider the following: the Veteran's MOS duties during service included multiple jumps from the helicopter and carrying gurneys; February 2008 VA medical records show that he had chronic bilateral medial meniscal tears with pain and swelling which caused arthralgia, myalgia, weakness, and swelling, and that he had an antalgic gait; the 2014 statement from the Veteran that he had "over 500 missions loading patients on and off aircrafts... physically pull and lift... and hoist people over 300 [pounds] onto aircrafts..." and that he strained his back several times but never reported "due to fear of losing flight status." The Veteran's testimony at the 2017 Board hearing that the constant pulling and loading of patients on gurneys onto aircraft hurt his neck and lower back, including the Veteran's statement that he fell off an aircraft and hurt his back, and two incidents where he missed his step and fell off the aircraft onto his backside; and the Veteran's testimony at the Board hearing and statement in the March 2014 and the 2017 Form 9 that he overcompensated from his service-connected right knee condition which caused an abnormal gait which affected his neck. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran's reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Rationale must be provided for opinions proffered. If the examiner determines a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. 4. Forward the electronic claims file and a copy of this REMAND to the 2021 VA examiner, or another examiner if that examiner is not available, to obtain an addendum opinion regarding the Veteran's left knee disability. The examiner must note his or her review of the complete claims file and should review this remand for a discussion as to why the prior opinion was inadequate. Examination of the Veteran is not required, unless the VA examiner determines an in-person examination is necessary to provide the below-requested opinion. Following a complete review of the electronic claims file, the examiner must provide an opinion as to: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current left knee disability is related to an in-service injury, event, or disease, to include the documented in-service injury? (b.) Whether it at least as likely as not that his current left knee disability is proximately due to his service-connected right knee disability (consideration of the symptoms PRIOR to the 2019 total knee replacement must be given)? (c.) Whether it at least as likely as not that his current left knee disability is aggravated beyond its natural progression by his service-connected right knee disability (consideration of the symptoms PRIOR to the 2019 total knee replacement must be given)? The examiner should specifically cite to any evidence that supports this opinion. The examiner is advised that a "permanent" worsening or increase in severity of the currently diagnosed left knee disability is NOT required to demonstrate "aggravation." Rather, aggravation is shown if there is any incremental increase in disability, meaning any additional impairment of earning capacity above the degree of disability existing before the increase, in a nonservice-connected disability resulting from a service-connected disability, regardless of its permanence. The examiner is also asked to consider the following: the Veteran's MOS duties during service included multiple jumps from the helicopter and carrying gurneys and his STRs showing a reported left knee complaint in 1977 (albeit he was a no-show); The Veteran was noted to have left knee pain in 2006 and imaging studies noted left meniscal tear and DJD left knee. February 2008 VA medical records show that he had chronic bilateral medial meniscal tears with pain and swelling which caused arthralgia, myalgia, weakness, and swelling, and that he had an antalgic gait; 2008 X-ray showed arthritic change of the left knee with a defect of the medial femoral condyle and partial absence of the menisci from prior surgery. There is also a questionable meniscal fragment in the joint; March 2008 - complaining of pain in both knees. The Doctor stated "this man has a long history of problems with his knees and has had surgery on both knees the left arthroscopic and the right one open surgery...He originally injured his left knee jumping out of a helicopter while in the military." The doctor also noted he had an antalgic gait with pain in BOTH knees. The veteran's left knee X-ray in 2011 showed moderate to severe narrowing of the medial joint compartment and it was noted that his knee pain it is constant but varies in intensity according to patient he is a candidate for both total knee and total hip replacements; 2013 VA examination, it was noted that he told an ortho specialist in March 2008 that he injured his left knee jumping out of a helicopter while in service. Veteran reported his knee pain worsens after walking for a long period; the Veteran's testimony at the Board hearing and statement in the March 2014 and the 2017 Form 9 that he overcompensated from his service-connected right knee condition which caused an abnormal gait; 2017 statement: "due to my right knee condition, and over time, I ambulated with an abnormal gait and favored the right knee putting additional stress on my left knee to the point of it becoming very painful. I have problems walking or climbing due to the knees." ongoing VA medical records showing consistent complaints of pain to his left knee, including the treatment note in 2008 and again in 2017 that the Veteran did have an abnormal gait; and the August 2020 examiner's opinion that "Veteran's right knee problems continued over the years, but he continued to use his [left] knee more due to [right] knee pain. This at least as likely as not caused veteran to wear out his [left] knee more quickly than [right] thereby having [left] knee total replaced in 2014 and [right] knee in 2019." The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran's reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (Continued on the next page) Rationale must be provided for opinions proffered. If the examiner determines a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.