Citation Nr: 21070285 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 15-14 254 DATE: November 23, 2021 REMANDED Service connection for an upper back condition. A rating in excess of 10 percent for right knee strain with degenerative joint disease prior to May 12, 2021 and in excess of 20 percent thereafter. A separate rating for right knee instability prior to May 12, 2021, and in excess of 20 percent thereafter. REASONS FOR REMAND The Veteran served on active duty from February 2003 to May 2004. He also had a prior period of active duty for training (ACDUTRA) from July 1996 to December 1996. The case is on appeal from an August 2013 rating decision. In September 2018, the Veteran testified at a Board hearing. Most recently, in an April 2021 decision, the Board denied service connection for tinnitus, and remanded the claim of service connection for an upper back condition and the claim for a rating in excess of 10 percent for a right knee condition for further development. While the case was in remand status, in an August 2021 rating decision, the RO awarded a 20 percent rating for instability of the right knee from May 12, 2021. 1. Service connection for an upper back condition. The Veteran is seeking service connection for an upper back condition. In this regard, at the September 2018 Board hearing, the Veteran described an accident in which he injured his back. See Board Hr'g Tr. at 9. He stated that while he was unloading supplies and mail from the back of a truck, several boxes fell on top of him causing injury to his back. The Veteran also contends that he may have injured his back jumping off the back of a truck with during training exercises. Id. In addition, the Veteran described experiencing pain in his upper back that contends is related to carrying large sacks while in service. See Board Hr'g Tr. at 11. The Veteran's service personnel records (SPRs) show he was put on a profile for his upper back in November 2003. Pursuant to the Board's April 2021 remand, the Veteran underwent a VA examination in May 2021. At that time, the examiner noted a diagnosis of cervical and thoracic spondylosis. She provided a negative etiology opinion. She stated that there were no complaints of an upper back or neck condition during service and explained that although there is currently a presence of an upper back and neck condition, the Veteran's claims file lacks the evidence to establish a connection to his dates of active duty. She noted that the Veteran's identified conditions of cervical and thoracic spondylosis were diagnosed during an evaluation the Veteran underwent after a motor vehicle accident in April 2016. The Board finds the May 2021 opinion is not entirely adequate to decide the claim. In this regard, the examiner relied on the absence of complaints related to an upper back or neck condition during service. However, as noted above and in the April 2021 remand, the Veteran's STRs include a November 2003 profile concerning the Veteran's upper back. As the Board's April 2021 decision requested that the examiner consider the November 2003 profile, there was not substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). Accordingly, the Board finds a new opinion is warranted on remand. 2. A rating in excess of 10 percent for right knee strain with degenerative joint disease based on limitation of motion. 3. A separate rating for right knee instability prior to May 12, 2021, and in excess of 20 percent thereafter. In the April 2021 remand, the Board found that a VA examination was warranted to evaluate the current severity of the Veteran's service-connected right knee condition, to include providing a retrospective opinion addressing range of motion findings recorded in prior examinations in order to fully comply with 38 C.F.R. § 4.59, to the extent possible, as the prior examinations did not contain the needed findings throughout the appeal period. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016); see also Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017). On remand, a VA examination of the Veteran's was conducted in May 2021. The examination provided findings at the Veteran's current disability level. However, the examination did not provide retrospective findings as to the Veteran's disability level for his right knee condition during the appeal period as requested by the Board. Hence, the VA examination is not substantially compliant with the Board's remand. See Stegall, 11 Vet. App. at 271; see D'Aries, 22 Vet. App. at 104-05. Accordingly, a retrospective opinion concerning the Veteran's service-connected right knee condition is warranted on remand. In light of the remand, updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain VA treatment records since December 2020. 2. Schedule the Veteran for a VA examination (or telehealth interview, record review, etc., if an in-person examination is not feasible) by a qualified medical professional for an opinion to determine the nature and etiology of upper back and/or neck condition(s). The entire claims file should be reviewed by the examiner. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any condition had its onset during service, or is otherwise causally related to service. The examiner should consider and discuss Veteran's contention that he has an upper back and/or neck condition that is related to the accident in which he stated that while he was unloading supplies and mail from the back of a truck, several boxes fell on top of him causing injury to his back and his contention that he may have injured his back jumping off the back of a truck with during training exercises. The examiner should also consider and discuss the clinical significance of the November 2003 profile regarding the Veteran's upper back and the Veteran's subsequent injuries due to a motor vehicle accident in 2016. A detailed rationale supporting the examiner's opinion must be provided. 3. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to provide retrospective findings regarding the Veteran's right knee condition. The need for an in-person examination is left to the discretion of the examiner. Following a review of the record, the examiner should provide retrospective findings as to the severity of the of the right knee condition, to include an estimate of the amount in degrees of range of motion lost due to pain in weight-bearing and nonweight-bearing positions, and on both active and passive motion, including at the time of VA examinations in March 2012 and April 2013. The opinion should also estimate the amount in degrees of range of motion lost due to flare-ups at the time of VA examinations in March 2012 and April 2013. The opinion should include consideration of the evidence, to include the Veteran's statements. (Continued on the next page) If the examiner cannot provide some or all such retrospective opinions, the examiner must make clear that he or she has considered all relevant, procurable data, but that any member of the medical community at large could not provide such an opinion without resorting to speculation. A rationale for all opinions expressed should be provided. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Gray, 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.