Citation Nr: 21067573 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-16 934 DATE: November 4, 2021 REMANDED Entitlement to service connection for a low back disability, to include as secondary to a service-connected right knee disability, is remanded. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1979 to August 1982. These matters are before the Board of Veterans' Appeals (the Board) on appeal from an October 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Unfortunately, remand is required for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claims so that the Veteran is afforded every possible consideration. 1. Entitlement to service connection for a low back disability, to include as secondary to a service-connected right knee disability, is remanded. The Veteran seeks service connection for a low back disability, diagnosed as lumbar strain and degenerative disc disease, which he asserts developed within a year after his active service and is the result of an epidural injection that he had pursuant to an in-service arthrotomy following a left knee injury. Alternatively, the Veteran generally contends this his low back disability was caused or aggravated by his service-connected right knee disability. The Veteran underwent VA examinations in October 2013 and January 2017. In October 2013, the examiner opined that the Veteran's degenerative disc disease is not related to his knees but rather natural age progression. No further rationale was offered. In January 2017, another examiner opined that it is less likely than not that the Veteran's back condition is secondary to his left knee. The examiner cited a lack of medical evidence showing a connection between the two diseases. Ultimately the examiner concluded that the Veteran's mild degenerative disc and endplate disease seen on x-ray are most likely age related. The Board finds both examinations and opinions to be inadequate, as the examiners failed to consider the Veteran's lay statements of record. Moreover, neither examiner addressed whether the Veteran's low back disability was caused or aggravated by his service-connected right knee disability. Accordingly, the Board finds the issue on appeal must be remanded for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim so that the Veteran is afforded every possible consideration. 2. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability, is remanded. The Veteran seeks service connection for a left knee disability which he asserts is either the direct result of an in-service left knee surgery, or generally caused or aggravated by his service-connected right knee disability. The Veteran underwent VA examinations October 2013 and January 2017. Both examiners provided negative nexus opinions and erroneously stated that the Veteran did not undergo any operations on his left knee in-service. In fact, the Veteran underwent a left knee arthrotomy in-service. Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). Moreover, there is no indication that either examiner considered the lay statements of record, and neither provided opinions addressing whether the Veteran's left knee disability was caused or aggravated by his service-connected right knee disability. For the reasons discussed above, the Board finds both examinations and opinions to be inadequate. Accordingly, the Board finds the issue on appeal must be remanded for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim so that the Veteran is afforded every possible consideration. Once VA undertakes the effort to obtain VA examinations and medical opinions when developing service connection claims, even if not statutorily obligated to do so, it must provide ones that are adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, remand is required to obtain VA examinations and medical opinions to determine the nature and etiology of the Veteran's low back and left knee disabilities. Accordingly, the matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination by an examiner of appropriate expertise, who has not previously provided an opinion in this case, to determine the nature and etiology of the Veteran's low back disability. The entire claims file, to include a copy of this REMAND, must be provided to the examiner and reviewed in full. Thereafter, the examiner should provide a fully-articulated opinion addressing the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's low back disability was incurred in or otherwise related to the Veteran's service, to include an epidural administered during his July 1981 left knee arthrotomy? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's low back disability is caused by his service-connected right knee disability? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's low back disability was aggravated by (increased in severity beyond its natural progression) by his service-connected right knee disability? If it is determined that there is another likely etiology for the Veteran's low back disability, that should be stated. In providing the requested opinion, the examiner must specifically consider and address the following evidence: The Veteran's testimony that he started having back pain a year or so after service and it persists to date. The Veteran's testimony that he suffered from flare-ups and pain beginning in 1983 and in 1984. The Veteran's lay statements and testimony that his low back disability is the result of trauma from an epidural administered pursuant to his in-service left knee surgery in 1981. See October 2014 Notice of Disagreement, March 2017 VA Form 9, August 2021 Board Hearing Transcript. 2. Schedule the Veteran for a VA examination by an examiner of appropriate expertise, who has not previously provided an opinion in this case, to determine the nature and etiology of the Veteran's left knee disability. The entire claims file, to include a copy of this REMAND, must be provided to the examiner and reviewed in full. Thereafter, examiner should provide a fully-articulated opinion addressing the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's left knee disability was incurred in or otherwise related to the Veteran's service, to include the April 1981 in-service left knee injury or July 1981 left knee arthrotomy? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's left knee disability was aggravated by (increased in severity beyond its natural progression) by his service-connected right knee disability? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's left knee disability was aggravated by (increased in severity beyond its natural progression) by his service-connected right knee disability? If it is determined that there is another likely etiology for the Veteran's left knee disability, that should be stated. In providing the requested opinion, the examiner must specifically consider and address the following evidence: September 2002 VA treatment note by Dr. F.S. stating his belief that the Veteran most likely had asymptomatic posttraumatic lateral compartment arthritis of the left knee which became active with his April 2002 injury. See September 2002 Private Treatment Note. The Veteran's lay statement that his left knee never returned to normal following the in-service left knee surgery and that since surgery he has had to wear a knee brace, take Motrin, and "ice it down." See March 2017 VA Form 9. The Veteran's hearing testimony that since the in-service left knee surgery he has experienced pain, and has popping and cracking in his knee when walking. See August 2021 Board Hearing Transcript. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. (Continued on the next page) The examiner is advised that the lack of documented treatment for the claimed disability during service cannot serve as the sole basis for a negative finding. The examiner is advised that the Veteran is competent to report his medical history and must be considered and weighed in making the determination as to whether a nexus exists between the claimed diseases and military service. The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to provide an opinion without resorting to speculation, he or she should fully explain why that is so. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates 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.