Citation Nr: 21067360 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-47 954 DATE: November 4, 2021 REMANDED The issue of entitlement to service connection for a left knee condition is remanded. The issue of entitlement to an initial rating in excess of 10 percent for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 2009 to June 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied entitlement to service connection for a left knee condition and granted entitlement to service connection for a low back disability and assigned a 10 percent rating. The Veteran timely perfected an appeal. See April 2015 Notice of Disagreement; August 2016 Statement of the Case; September 2016 VA Form 9. In March 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge, a transcript of which is associated with the claims file. In November 2020, the Board remanded this matter for additional development. Although the Board regrets the additional delay, the issues on appeal must be remanded again to ensure that there is a complete record upon which to decide the Veteran's claims. Increased Rating for a Low Back Disability The Veteran contends that his service-connected low back disability is more severe than reflected by his current disability rating. The Board finds that the evidence of record is insufficient to determine the severity of the Veteran's lumbar spine disability. In this regard, numerous VA treatment records, as well as VA examination reports, show that the Veteran may have neurological manifestations associated with his lumbar spine disability. Specifically, a June 2015 VA treatment record shows complaints of radiating low back pain and numbness. Similarly, a July 2015 VA treatment record shows complaints of radiating low back pain and numbness/tingling in the hamstrings and a diagnosis of lumbar DJD/DDD, as well as "[p]ossible central disc protrusion with intermittent radicular symptoms." A May 2018 VA treatment record shows that the Veteran reported radiating low back pain with tingling down to his feet. During the March 2020 Board hearing, the Veteran reported radiating pain, tingling, and numbness in his legs. Moreover, during the May 2016 VA examination, the Veteran reported occasional foot numbness, reflexes were absent or hypoactive bilaterally, and sensation was decreased at the upper anterior thigh bilaterally. However, the examiner indicated that the Veteran did not have any signs or symptoms related to radiculopathy or other neurologic abnormalities. Similarly, during the June 2021 VA examination, the Veteran reported occasional numbness in his feet; however, the examiner again indicated that the Veteran did not have any signs or symptoms related to radiculopathy or other neurologic abnormalities. It does not appear that the AOJ has considered the possibility of separate neurological ratings for neurologic abnormalities as provided in Note 1 of the General Rating Formula for Diseases and Injuries of the Spine (Formula). As there is evidence of potentially associated neurologic abnormalities that have not been considered by any VA examiner, the Board finds it must remand the claim for a new examination detailing the current severity of the Veteran's low back disability as well as all associated neurologic disorders. Service Connection for a Left Knee Condition The Veteran contends that his left knee condition is related to gait changes caused by his service-connected right knee disability. Service treatment records show that the Veteran injured his right knee in December 2009 and that he frequently complained of chronic right knee pain throughout service. An April 2012 service treatment record shows that the Veteran reported trouble walking on his right knee, and he was noted to be limping. In September 2013, the Veteran underwent right knee surgery. Post-service VA treatment records show that the Veteran reported right knee pain. They also note occasional gait changes due to the Veteran's right knee disability. See, e.g., July 2015 VA Treatment Record (noting moderate antalgic gait on the right with right knee pain with gait). During the March 2020 Board hearing, the Veteran testified that he did not currently receive treatment for a left knee condition but that he used over-the-counter pain medications and at home exercises that he learned to manage his right knee condition. The Veteran was afforded a VA examination in May 2016. He reported left knee pain since 2012 due to compensating for his right knee pain and right knee surgery. Despite limited range of motion of the left knee and complaints of knee pain, the examiner found that the Veteran's left knee was normal and opined that the Veteran had no left knee condition "as related to his" right knee condition. In November 2020, the Board remanded this matter for a new VA examination that adequately addressed the Veteran's reports of knee pain and his contentions that his left knee condition was related to his service-connected right knee disability. Additionally, the Board directed the AOJ to associate updated VA treatment records with the claims file prior to obtaining an opinion. The Veteran was afforded a VA examination in January 2021. He reported daily left knee pain and soreness. Range of motion testing revealed left knee flexion limited to 130 degrees, with pain, and normal extension, with pain. The examiner indicated that the Veteran's "very slight decrease" in range of motion was secondary to his body habitus. The examiner did not explain why there was pain with range of motion if that was the case. No imaging was performed. The examiner indicated that the Veteran did not have a diagnosed left knee condition. The examiner opined that a left knee condition was not secondary to the Veteran's service-connected right knee condition. The examiner indicated that the Veteran's right knee healed quickly, with no residual gait changes. The examiner also noted that post-service treatment records were negative for left knee complaints. In March 2021 (i.e., subsequent to the January 2021 VA knee examination), the RO associated updated VA treatment records with the claims file. These records show that in March 2020, the Veteran reported left knee pain that he believed was due to over-compensating for his service-connected right knee disability. An April 2020 VA treatment record shows that the Veteran "needs [left] knee x-rays," but that radiology was not doing routine imaging due to COVID restrictions. Upon review, it is clear that the VA examiner has still not adequately addressed all of the questions specified in the previous Board remand. Initially, the examiner's statements regarding the Veteran's in-service and post-service symptoms and treatment are inaccurate and reflect a less than thorough review of the evidence. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). In this regard, the examiner indicated that the Veteran did not have gait changes secondary to his service-connected right knee disability. However, the record clearly shows both in-service and post-service gait changes secondary to his in-service right knee injury and subsequent surgery. Additionally, the examiner based his negative nexus opinion, in large part, on the lack of medical treatment for a left knee condition, but he did not comment on the Veteran's many lay statements regarding left knee pain in service and after discharge. Relying solely on the absence of evidence in medical records to provide a negative opinion is contrary to established case law, and such opinions are therefore inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (2006) (holding that the lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible). Moreover, as noted above, the RO did not associate updated VA treatment records, which show recent complaints of left knee pain and a notation that the Veteran needed left knee x-rays, with the claims file until after the January 2021 VA examination. As such, the examiner did not have the benefit of these potentially pertinent records when rendering the opinion. Accordingly, further remand of this matter to obtain the previously requested medical opinion that complies with the Board's previous remand instructions and is based on full consideration of all evidence is needed. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence...is essential for a proper appellate decision"); 38 C.F.R. § 4.2 (noting that if the examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes); see also Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file all outstanding VA treatment records documenting treatment for the issues on appeal. The Veteran should also be given the opportunity to identify and/or submit any private medical evidence relevant to his claim. 2. After all available records have been associated with the claims file, the Veteran should be scheduled for an appropriate VA examination so as to determine the current level of severity of his low back disability. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All necessary tests should be conducted. The examiner should describe the nature and severity of all manifestations of the Veteran's low back disability. In this regard, the examiner should record the range of motion observed on clinical evaluation, in terms of degrees of extension, forward flexion, left and right lateral flexion, and left and right rotation. If there is clinical evidence of pain on motion, the examiner should indicate the degree of flexion, extension, and/or rotation at which such pain begins. Then, after reviewing the Veteran's complaints and medical history, the examiner should render an opinion, based upon his or her best medical judgment, as to the extent to which the Veteran experiences functional impairments such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups, and should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically), if feasible. In order to comply with the Court's recent precedential decision in Correia v. McDonald, the examiner must test and record range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, if applicable. 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 should also express an opinion concerning whether there would be additional functional impairment, such as weakness, excess fatigability, incoordination, or pain, on repeated use or during flare-ups. The examiner should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically), if feasible. If the Veteran denies any additional pain and/or functional limitation during flare-ups or with repeated use over time, such should be noted in the report. However, if the Veteran is not currently experiencing a flare-up and/or if the Veteran has not been evaluated after repeated use over time, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares or after repeated use over time expressed in terms of the degree of additional range of motion lost, or explain why he or she cannot do so. If the examiner is unable to estimate functional loss in terms of degrees after physical examination and eliciting the pertinent information discussed above, he or she must explain why and may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or after repeated use over time. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). If range of motion is not possible, the examiner should indicate whether the Veteran has unfavorable ankyloses of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. The examiner should also state whether the Veteran's service-connected low back disability is manifested by any neurological impairment, and, if so, which nerves are involved, and the extent of the impairment (mild, moderate, moderately severe, or severe incomplete, or complete, paralysis of the affected nerve). The examiner should specifically indicate whether the Veteran has bowel or bladder impairment, erectile dysfunction, or right and/or left lower extremity radiculopathy as a result of his back disability. If the examiner determines that the Veteran has not had a diagnosis related to right and/or left lower extremity radiculopathy at any time during the pendency of this appeal, the examiner should thoroughly reconcile that opinion with the VA treatment records and VA examination reports showing complaints of radiating pain and lower extremity numbness. The examiner should also state whether the Veteran has incapacitating episodes of low back pain, and if so, the duration of the episodes. The examiner must provide a rationale for each of the opinions that takes into account the Veteran's reports of his history and his current symptoms. The reasons and bases for each opinion are to be fully explained with a complete discussion of the evidence of record and sound medical principles, which may reasonably explain the medical guidance in the study of this case. 3. After all available records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his left knee condition. The claims file and a copy of this remand must be made available to the examiner in conjunction with the examination. All indicated tests and studies, to specifically include imaging studies if deemed necessary, should be accomplished, and all clinical findings should be reported in detail. After examining the Veteran and reviewing the claims file, the examiner should identify all currently diagnosed left knee conditions. If the examiner determines that the Veteran does not have a diagnosable left knee condition, the examiner must reconcile that determination with VA treatment records and VA examination reports showing complaints of left knee pain and objective evidence of limited range of motion with pain, as well as the Veteran's lay statements regarding left knee pain since his in-service right knee injury/surgery. Then, for each currently diagnosed left knee condition, the examiner should opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the condition is proximately due to or caused by the Veteran's service-connected right knee disability, to include long-term overuse and overcompensation caused by the service-connected right knee disability. Please explain why or why not. If not, is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's left knee condition was aggravated (worsened in severity beyond a natural progression) by the Veteran's service-connected right knee disability, to include long-term overuse and overcompensation caused by the service-connected right knee disability? Please explain why or why not. If the examiner determines that the Veteran's left knee condition was aggravated by his service-connected right knee disability, the examiner should report the baseline level of severity of the left knee condition prior to the onset of aggravation. If some of the increase in severity of the left knee condition is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. In providing these opinions, the examiner must address the Veteran's arguments that long-term overuse and overcompensation due to his service-connected right knee disability, to include gait changes caused by his right knee disability, caused or aggravated his left knee condition. The examiner's report must reflect consideration of the Veteran's entire documented medical history and assertions and all lay evidence. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a thorough rationale for each opinion given. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, re-adjudicate the Veteran's claim. If the claim remains denied, the Veteran should be furnished a supplemental statement of the case and be allowed an appropriate period of time for response. The case should be returned to the Board for further appellate review, if otherwise in order. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kipper, 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.