Citation Nr: 21067397 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 12-09 196 DATE: November 4, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for lumbosacral spondylosis (back disability) is remanded. Entitlement to service connection for a right knee disability, as secondary to a back disability, is remanded. Entitlement to service connection for a right hip disability, as secondary to a back disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 2006 to May 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by an agency of original jurisdiction (AOJ) of the Department of Veterans Affairs (VA). A March 2018 Board decision denied an increased initial rating for the Veteran's back disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC), and the March 2018 Board decision was vacated pursuant to a May 2019 Joint Motion for Remand (JMR). The Board remanded this matter in August 2019. In October 2020, the Board granted an initial rating of 10 percent for the Veteran's back disability and denied entitlement to a rating in excess of 10 percent. The Veteran appealed the October 2020 Board decision to the CAVC, and a June 2021 Joint Motion for Partial Remand (JMPR) vacated the October 2020 Board decision insofar as it denied an initial rating in excess of 10 percent. Pursuant to the JMPR, the Veteran and the VA agreed that the Board did not provide adequate reasons and bases. Specifically, the Board erred by (1) failing to discuss levoscoliosis noted in an April 2012 x-ray report, (2) failing to reconcile the positive straight leg test noted in the December 2019 examination report with the Board's decision that the Veteran was not entitled to a separate compensable rating for objective neurological abnormalities, and (3) failing to address reasonably raised issues of entitlement to service connection for right hip and right knee disabilities, as secondary to the Veteran's back disability. See JMPR at 2-4. Additionally, the Veteran and the VA agreed that the Board erred by relying on the December 2019 back examination report, which did not include range of motion measurements for both weight-bearing and nonweight-bearing, as directed by the August 2019 Board remand. See JMPR at 4-5. The JMPR directed the Board to remand the matter for an examination and medical opinion that provide these results. See id. at 5. 1. Entitlement to an initial rating in excess of 10 percent for a back disability is remanded. On remand, the Veteran should be afforded an examination and an opinion should be secured as to the range of motion measurements for weight-bearing and nonweight-bearing. The examiner should provide an opinion as to whether there are neurologic abnormalities that are related to the Veteran's back disability and should discuss the positive straight leg raise testing results noted in the December 2019 examination report. 2. Entitlement to service connection for a right knee disability, as secondary to a back disability, is remanded. 3. Entitlement to service connection for a right hip disability, as secondary to a back disability, is remanded. The Board may be required to explore schedular rating tools, including secondary service connection, as part of an increased rating claim. See Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019). The JMPR determined that the issues of entitlement to secondary service connection for a right knee disability and a right hip disability have been raised. As noted in the JMPR, the record includes competent lay evidence of current symptoms of right knee and right hip disabilities, as well as an indication that these symptoms may be associated with the Veteran's back disability. Thus, on remand he should be afforded an examination and medical opinions should be secured addressing the nature and etiology of these symptoms. See 38 C.F.R. § 3.159(c)(4). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and severity of his back disability. The claims file should be made available to and be reviewed by the examiner. All findings should be reported in detail. The examiner should respond to each of the following: (a) Assess the severity of the Veteran's back disability. The examiner should conduct all indicated tests and studies, to include range of motion studies. Each of the joints involved should be tested for pain (1) on active motion, (2) on passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. The examiner must provide range of motion measurements in weight-bearing and nonweight-bearing. 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 (e.g., unsafe to perform, etc.). (b) Please opine whether it is at least as likely as not (50 percent or greater probability) that the levoscoliosis noted on an April 2012 X-ray was due to muscle spasm or guarding. See VA Treatment Records (April 23, 2012 thoracic regional plain film radiographs, with radiologist's impression of "[s]light levoscoliosis which may be positional"). (c) Please opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's back disability has been productive of neurologic abnormalities (such as radiculopathy) at any time since May 2010, even if subsequently resolved. In providing this opinion, the examiner should discuss the positive straight leg raise testing results noted in the December 2019 examination report. See December 2019 C&P Exam at 7. Please address each subpart separately. A complete rationale must be provided for all opinions. If the requested opinions cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion would be speculative. 2. Schedule the Veteran for an examination to determine the nature and etiology of any right knee disability. The claims file should be made available to and be reviewed by the examiner. All findings should be reported in detail. The examiner should respond to each of the following: (a) Diagnose all right knee disabilities present since May 2010. The examiner is advised that for VA compensation purposes, a disability includes a functional impairment due to pain, weakness, or other causes, even in the absence of pathology. The examiner should diagnose all disabilities or functional impairments present since May 2010, even if subsequently resolved. (b) For each disability or functional impairment diagnosed in sub-part (a), please opine whether it is at least as likely as not (50 percent or greater probability) that such impairment is proximately due to the Veteran's back disability. (c) For each disability or functional impairment diagnosed in sub-part (a), please opine whether it is at least as likely as not (50 percent or greater probability) that such impairment has been aggravated (worsened beyond natural progression) by the Veteran's back disability. Please address each subpart separately. In addressing these questions, the examiner should discuss the Veteran's reports of right knee pain and soreness that he attributes to his back. See December 2019 C&P Examination at 2; April 23, 2018 VA Treatment Note. A complete rationale must be provided for all opinions. If the requested opinions cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion would be speculative. 3. Schedule the Veteran for an examination to determine the nature and etiology of any right hip disability. The claims file should be made available to and be reviewed by the examiner. Any findings should be reported in detail. The examiner should respond to each of the following: (a) Diagnose all right hip disabilities present since May 2010. The examiner is advised that for VA compensation purposes, a disability includes a functional impairment due to pain, weakness, or other causes, even in the absence of pathology. The examiner should diagnose all disabilities or functional impairments present since May 2010, even if subsequently resolved. (b) For each disability or functional impairment diagnosed in sub-part (a), please opine whether it is at least as likely as not (50 percent or greater probability) that such impairment is proximately due to the Veteran's back disability. (c) For each disability or functional impairment diagnosed in sub-part (a), please opine whether it is at least as likely as not (50 percent or greater probability) that such impairment has been aggravated (worsened beyond natural progression) by the Veteran's back disability. Please address each subpart separately. In addressing these questions, the examiner should discuss the Veteran's reports of right hip pain and soreness that he attributes to his back. See December 2019 C&P Examination at 2; April 23, 2018 VA Treatment Note. A complete rationale must be provided for all opinions. If the requested opinions cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion would be speculative. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, 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.