Citation Nr: 21071129 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 17-14 610 DATE: November 29, 2021 REMANDED Entitlement to service connection for a lumbar spine disorder, claimed as secondary to a service-connected left knee condition, is remanded. Entitlement to service connection for a left ankle impairment, claimed as secondary to a service-connected left knee condition, is remanded. REASONS FOR REMAND The Veteran had active duty service from May 1962 to December 1964. This appeal is before the Board of Veterans' Appeals (Board) from a June 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO) and in October 2018, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. In June 2020, the Board denied the Veteran's claims; however, he subsequently appealed these claims to the U.S. Court of Appeals for Veteran's Claims (CAVC). In June 2021, the parties agreed to a Joint Motion for Remand (JMR) after determining the Board relied on inadequate medical opinions and did not acquire outstanding medical records. First, the JMR determined the Board erred by relying on inadequate medical opinions since they were based on an inaccurate factual premise. The JMR states in pertinent part: The Board erred by finding that the Secretary's duty to assist was satisfied. In denying entitlement to service connection for both a lumbar spine disorder, and a left ankle disability, the Board relied on a December 2019 VA opinion. The December 2019 VA examiner ultimately noted that the medical records provided prior to the examinations showed "there is no evidence of left leg injury/treatment or imbalanced gait during service." [R. at 533 (527-42)] (December 2019 VA Examination). The December 2019 VA examiner then continued to find that "[t]here is no witness statement provided from person who was present during claimed injury," and that ultimately "there is no evidence provided to support his statements regarding left leg injury and limping during service, at separation and soon after." Id. Importantly, however, in an April 2005 rating decision, VA reopened and granted service connection for residuals of a left leg injury with scar. [R. at 2038-41] (April 2005 VA Rating Decision [date of decision of March 23, 2005]). In the April 2005 rating decision, VA noted that Appellant had consistently maintained that he suffered an in-service injury to his left leg after being hit by an aircraft hook accidentally released by another serviceman, which caused him to limp at times. [R. at 2039]. The April 2005 rating decision also indicated that Appellant's report that he suffered that injury and limped since service was corroborated by reports from family members, co-workers, and supervisors. Id. Consequently, VA found that the "evidence is sufficient to generate a reasonable doubt as to whether the current limp and scar of the veteran's left leg is due to an in-service injury." [R. at 2040].VA accordingly granted service connection for residuals of left leg injury with scar. Id. Accordingly, the December 2019 VA examiner was operating on the premise that no such injury occurred, however, in light of the April 2005 rating decision, the examiner instead was required to render an opinion based on the accurate factual premise that Appellant suffered an in-service injury and has had a persistent limp since that time. Accordingly, the Board must follow the parties' instructions contained in the June 2021 JMR and thus, a remand is required to acquire new VA medical opinions based on the premise that he suffered an in-service left knee injury. Second, the JMR determined the Board errored by not acquiring outstanding private medical records. Specifically, the JMR states: The record indicates that an initial request for treatment records for back pain was made in April 2013 from a [Dr. J.S.]. [R. at 1512] (April 2013 request form). However, there is no evidence within the record that a follow-up request was made for these records. The record also indicates that Appellant was authorized for physical therapy for "Low Back Pain," through the VA Choice Program. [R. at 132] (April 2019 VA Treatment Record). Those physical therapy records were obtained and scanned into VA's VistA system. [R. at 116] (July 2019 physical therapy records scanned into VistA). The substance of the record from those treatment sessions, however, were not obtained. Accordingly, the Board must follow the parties' instructions contained in the June 2021 JMR and thus, a remand is also required to acquire these outstanding private and VA medical records. These matters are remanded for the following actions: 1. Inform the Veteran, in accordance with 38 C.F.R. § 3.159(e), that all prior attempts to acquire medical records from Dr. J.S. have been unsuccessful and document such correspondence in the claims file. 2. In a separate letter, request the Veteran to provide authorization to obtain medical records from Dr. J.S. All efforts to obtain these records should be documented in the claims file. 3. Acquire the outstanding VA medical records in relation to his physical therapy through the VA Choice Program and associate them with the claims file. 4. After the above is completed, acquire a VA medical opinion as to the nature and etiology of his lumbar spine condition. The examiner must review the claims file, including private and VA treatment records and the evidence outlined in the May 2019 Board Remand. The examiner is requested to respond to the following questions: (a.) Whether it is at least as likely as not (a fifty percent probability or greater) the Veteran's lumbar spine disorder is proximately due or the result of his service-connected left knee disability. (b.) If the answer to the above question is negative, whether it is at least as likely as not (a fifty percent probability or greater) the Veteran's lumbar spine disorder has been aggravated beyond its natural progression (increased in severity proximately due to or as a result of) by his service-connected left knee condition. Note 1: The examiner is to render the above requested opinions under the assumption that the Veteran suffered an in-service left knee injury. Note 2: The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. Note 3: A detailed rationale supporting the examiner's opinions should be provided. The rationale for any opinion expressed must be provided. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 5. Acquire a VA medical opinion as to the nature and etiology of his claimed left ankle condition. The examiner must review the claims file, including private and VA treatment records and the evidence outlined in the May 2019 Board Remand. The examiner is requested to respond to the following questions: (a.) Whether it is at least as likely as not (a fifty percent probability or greater) the Veteran's claimed left ankle condition is proximately due to or the result of his service-connected left knee disability. (b.) If the answer to the above question is negative, whether it is at least as likely as not (a fifty percent probability or greater) the Veteran's claimed left ankle condition has been aggravated beyond its natural progression (increased in severity proximately due to or as a result of) by his service-connected left knee condition. Note 1: The examiner is to render the above requested opinions under the assumption that the Veteran suffered an in-service left knee injury. Note 2: The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. Note 3: A detailed rationale supporting the examiner's opinions should be provided. The rationale for any opinion expressed must be provided. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 6. After the above is completed in addition to any other development deemed necessary, readjudicate the appeal. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.