Citation Nr: 21069207 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-63 970 DATE: November 17, 2021 ORDER As new and material evidence has been received, the previously denied claim of service connection for a back disability is reopened. REMANDED Entitlement to service connection for a right knee disability, to include as secondary to the service-connected left knee disability, is remanded. Entitlement to service connection for a back disability, to include as secondary to the service-connected left knee disability, is remanded. Entitlement to a rating in excess of 10 percent prior to May 11, 2016 and in excess of 30 percent from July 1, 2017, for a service-connected left knee disability is remanded. FINDING OF FACT 1. In an August 2012 rating decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran's claim of service connection for a low back disability; this decision is final. 2. The evidence received since the August 2012 rating decision is new and material. CONCLUSION OF LAW 1. The August 2012 rating decision, which denied the Veteran's claim of service connection for a low back disability, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.302. 2. Evidence received since the August 2012 rating decision in support of the claim of service connection for a low back disability is new and material; the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1967 to October 1968. Whether new and material evidence has been submitted to reopen the claim of service connection for a back disability The Veteran seeks to reopen a claim of entitlement to service connection for a back disability. The initial claim was denied in an August 2012 rating decision because there was no nexus to service. The Veteran did not initiate an appeal of that decision or submit new and material evidence within one year and the decision became final. Evidence of record in August2012 included the Veteran's service treatment records (STRs), a physician statement, private treatment records, a disability benefits questionnaire submitted on behalf of the Veteran, and an August 2012 VA examination. Evidence added to the record since the August 2012 decision includes VA treatment records, private treatment records, and a February 2021 chiropractic opinion. The February 2021 private opinion related the current back disability to the Veteran's knee disabilities. He is service-connected for a left knee disability. The Board finds that February 2021 opinion is new and material as it relates to an unestablished fact; that is, whether the Veteran's back disability is related to service or a service-connected disability. Shade v. Shinseki, 24 Vet. App. 110 (2010). The claim for service connection for a low back disability is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a back disability, to include as secondary to the service-connected left knee disability, is remanded. The claim is remanded to obtain a medical opinion. 38 C.F.R. § 3.159 (c)(4). The February 2021 chiropractor's opinion said the Veteran's back disability is preceded by "the knee" due to biomechanical movement to compensate for the knee pain. The opinion on remand should address direct service connection and secondary causation and aggravation. 2. Entitlement to service connection for a right knee disability, to include as secondary to the service-connected left knee disability, is remanded. The claim is remanded to obtain a medical opinion. The negative February 2016 VA opinion is inadequate as to secondary causation and did not address aggravation at all. The rationale for the negative opinion on secondary causation does not take the Veteran's entire medical history into account and relies on general medical principles. 3. Entitlement to a rating in excess of 10 percent prior to May 11, 2016 and in excess of 30 percent from July 1, 2017, for a service-connected left knee disability is remanded. The claim is remanded for a current examination. During the course of the appeal, the Veteran underwent a total knee replacement. The left knee disability was rated as 100 percent disabling from May 11, 2016 to July 1, 2017, after which a 30 percent rating was effective. See October 2017 rating decision. The issue before the Board is as noted on the title page. The Veteran contends that his left knee has worsened since his last examination in October 2017 VA examination, a new VA examination is warranted. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any providers (both VA or private) who treated any of the claimed conditions since October 2017. Take all appropriate action to obtain all identified records. 2. After completion of the above, schedule the Veteran for an examination with an appropriate clinician to determine the nature and likely etiology of the right knee and back disabilities and the current severity of the left knee disability. Copies of all pertinent records must be made available to the examiner for review. The examiner must complete the corresponding VA disability benefits questionnaire (DBQ), provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. Based on the examination and review of the record, the examiner must answer the following: (a) Is it at least as likely as not that any currently diagnosed right knee disability is (i) proximately due to (caused by) or (ii) aggravated by the Veteran's service-connected left knee disability? Aggravation here is defined as any increase in disability. (b) Is it at least as likely as not that any currently diagnosed back disability is (i) proximately due to (caused by) or (ii) aggravated by the Veteran's service-connected left knee disability? Aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. (c) For the left knee, the examiner should provide a full description of the disability for the period before May 2016 and after July 2017 and report all signs and symptoms necessary for evaluating the knee under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. The examiner must also test and provide full range-of-motion findings for each respective joint on active motion, passive motion, in weight-bearing and without weight-bearing. The examiner must complete the corresponding VA DBQ. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or a deficiency in the examiner's knowledge or training. The examiner must provide reasons for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, they should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 3. Confirm that the VA medical opinions provided comport with this remand, specifically (i) that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself and (ii) the left knee opinion covers the period before and after the May 11, 2016 knee replacement. If not, get an addendum. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Jarman, 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.