Citation Nr: 21069678 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 10-47 891 DATE: November 19, 2021 REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January to April 1980 and from July 1980 to July 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2009 by the Department of Veterans Affairs (VA) Regional Office in Huntington, West Virginia. These matters were previously before the Board in June 2018, at which time the Board found that new and material evidence had not been submitted to warrant reopening of the claim of entitlement to service connection for a low back disorder. The Veteran appealed that decision to the United States Court of Appeals for Veterans' Claims (Court) and, in an April 2019 Joint Motion for Remand, the parties agreed that the Board's decision should be vacated and returned. The Court granted that motion in May 2019. The claims returned to the Board and, in a September 2019 remand, it noted that the Veteran's knee claim, which had been characterized as a claim of entitlement to service connection for arthritis and joint pain, was more properly characterized as one which addressed a previously-denied claim of service connection for a left knee disorder. At that time, it remanded both the low back and knee claims in order to obtain certain treatment records and provide the Veteran with notice that complied with the requirements of the Veterans Claims Assistance Act. These matters returned to the Board in March 2021, at which time the Board found that new and material evidence had been received to warrant reopening both claims of entitlement to service connection. It then remanded the claims to provide the Veteran with VA examinations. Such were obtained in April 2021. In July 2021, the claims returned to the Board, at which time it found that they were inadequate for the purposes of deciding the Veteran's claims. Specifically, the Board found that the back examiner erred when she failed to adequately address the circumstances of the Veteran's service, to include his lay statements concerning back pain during service and failed to provide a rationale for her conclusion. The Board further found that the knee examiner's opinion was conclusory and lacked a sufficient rationale. The claims were remanded for new opinions. Such were obtained in August 2021. Unfortunately, for the reasons below, an additional remand is warranted. Although it regrets the additional delay, the Board must find that the current record does not contain an opinion which adequately addresses the Veteran's claims. Back As noted in its July 2021 remand, a medical opinion is needed which adequately addresses the Veteran's contentions that his in-service duties, including parachute jumps and carrying an 80-pound rucksack, caused his low back disorder. Additionally, opinion is needed to address his credible reports of an in-service onset of lower back pain. In the August 2021 examination report, the examiner acknowledged, but disregarded, the Veteran's reports that he conducted multiple parachute jumps while in service, and noted that his service treatment records were absent of any complaints related to his back. She emphasized this absence of in-service complaints of back pain when concluding that the Veteran's back disorder was less likely than not due to service. However, the Board has previously found that parachute jumps are consistent with the circumstances of the Veteran's service, and that he is credible to report an in-service onset of lower back pain. The August 2021 examiner was asked to address these contentions but chose instead to discredit them. Further, the examiner relied on an absence of in-service treatment for a back disorder when she found no nexus, which is in error. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). Therefore, to date no examiner has adequately addressed the Veteran's credible assertions as to the circumstances of his service and a possible link to his diagnosed low back disorder. A remand is required. Knee The Veteran asserts that his left knee disorder is related to his military service or, in the alternative, that he developed such as a result of his service-connected left hip and/or left ankle disabilities. In its July 2021 remand, the Board found that an April 2021 opinion was inadequate and requested an opinion which addressed the Veteran's in-service reports of left knee pain. Specifically, the Board noted that there was documentation of in-service treatment for left knee pain, and the Veteran has asserted that his parachute jumps and carrying a rucksack caused him to develop a left knee disorder. The Board further found that the April 2021 examination report did not adequately address the Veteran's assertions of a link between his service-connected disabilities and his left knee disorder. Finally, the examiner erred when they failed to address any functional impairment to the knee, due to pain, pursuant to Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Veteran underwent a knee examination in August 2021, by the same examiner who provided the opinion concerning his back, above. As with that opinion, the examiner disregarded the Veteran's assertions of in-service knee pain and based her conclusion on the fact that the Veteran's service treatment records did not show treatment of the knee, other than an October 1981 visit for bilateral knee pain, and that the Veteran did not otherwise report knee pain until a 1988 VA examination. Again, this disregards the Veteran's credible reports of his in-service duties and an in-service onset of knee pain and is based on a lack of in-service treatment. Dalton, supra. Further, regarding aggravation by service-connected disabilities, the examiner concluded that the Veteran's left knee strain was not aggravated beyond its natural progression by his military service, which the Board notes is an incorrect standard, and is not responsive to the question presented by the remand instructions. The examiner offered no rationale for this conclusion. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007)("[A] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Regarding functional impairment, the examiner indicated that the Veteran's "pain alone of his knee could not cause functional impairment for unknown reasons." The examiner's intended conclusion is unclear from this statement; thus, it is inadequate for the purposes of determining whether the Veteran experiences any functional impairment of the left knee, due to pain, as per Saunders. Once VA provides an examination in a service connection claim, the examination must be adequate, or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In addition, a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97 (2008). Here, the Veteran has not yet been afforded an adequate examination which complies with its remand instructions. For these reasons, additional remand is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA back examination with an examiner other than the one who performed the August 2021 examination, if possible. The claims folder should be made available to the examiner, who is asked to address whether it is at least as likely as not (50 percent or greater probability) that the Veteran's low back disorder, diagnosed as degenerative disc disease, was caused by, or incurred in, service. The examiner should consider the Veteran's contentions that wear and tear on his back from parachuting and military training including carrying heavy rucksacks, and his fall during service while carry a heavy rucksack, caused his low back disorder. The Veteran is competent to report, and the examiner must consider this lay evidence of in-service incurrence or continuity of symptomatology since service. A rationale is requested for any opinion given. 2. Schedule the Veteran for a VA knee examination with an examiner other than the one who performed the August 2021 examination, if possible. The electronic claims folder should be made available to the examiner, who is asked to diagnose all disabilities of the Veteran's left knee. Then, in relation to each diagnosed disability, the examiner is asked to opine whether such disability: a) is at least as likely as not (that is, a 50 percent or greater probability) directly related to service, to specifically include parachute jumps and carrying a heavy rucksack. b) is at least as likely as not caused by, or aggravated by, his service-connected left hip and left ankle disabilities. Both causation and aggravation must be addressed. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. If the examiner finds the Veteran does not have a currently diagnosed left knee disability, they are asked to address whether the Veteran's pain alone, absent a specific diagnosis or otherwise identified disease or injury, causes functional impairment. If so, the examiner should address whether it is at least as likely as not that such is related to service or was caused or aggravated by service-connected disabilities. In doing so, the examiner should note and address the evidence of record pertaining to joint pain. The examiner should consider the Veteran's contentions that wear and tear on his knee from parachuting and military training, including carrying heavy rucksacks, caused his left knee disorder. The Veteran is competent to report, and the examiner must consider this lay evidence of in-service incurrence or continuity of symptomatology since service. A rationale is requested for all opinions. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.