Citation Nr: 21071515 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-65 469 DATE: November 30, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from September1979 to August 1985 and had additional, subsequent service in the U.S. Army Reserves. The Veteran testified in support of these claims during a hearing before the undersigned Veterans Law Judge (VLJ) of the Board in May 2019. A transcript of the hearing is of record. In an October 2020 decision, the Board denied these claims, and in response the Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In a July 2021 Order, the Court granted a Joint Motion for Remand (JMR) filed by the contesting parties, vacating the Board's decision denying these claims and remanding them back to the Board for action consistent with the terms of the JMR. To comply with the Court's Order, the Board, in turn, is remanding these claims back to the Agency of Original Jurisdiction (AOJ). 1. Entitlement to service connection for a right knee disability is remanded. Regarding this claim, the June 2021 JMR agreed the Board had relied on an inadequate VA medical opinion in deciding this claim. Specifically, the JMR agreed the Board had improperly relied on a November 2019 medical opinion of a VA physician who, in turn, had failed to provide an opinion on whether the Veteran's Osgood-Schlatter's disease of the right knee clearly and unmistakably pre-existed his service. The examiner instead assumed this condition pre-existed the Veteran's service and consequently rendered an opinion only concerning whether this condition was aggravated by his service. The parties also agreed that the November 2019 VA examination report relied on an inaccurate medical history. The examiner stated that, upon entry into the service, the Veteran had a prominence of the tibial tuberosity as a residual of Osgood-Schlatter's disease; however, there is no evidence of such a finding upon entry. The examiner also incorrectly stated that there was no documentation of ongoing knee pain prior to 2014. For these reasons, more medical comment is needed before readjudicating this claim. 2. Entitlement to service connection for a right ankle disability is remanded. AND 3. Entitlement to service connection for a left ankle disability is remanded. Because the Veteran alleges that his right and left ankle disabilities are secondary to his right knee disability, these claims are "inextricably intertwined". Thus, consideration of these claims for right and left ankle disabilities must be deferred pending completion of the additional development being directed regarding the underlying claim for a right knee disability. 4. Entitlement to service connection for a lumbar spine disability is remanded. Likewise, in the June 2021 JMR, the parties agreed that the Board had failed to provide an adequate statement of reasons or bases for denying this claim. Specifically, the Board relied on a March 2015 VA examination report finding no then current back symptoms and thus not opining on the etiology of any low back disability. However, the Board failed to discuss the Veteran's May 2019 hearing testimony attesting that he had injured his back in service and that it had continuously bothered him ever since. Thus, medical comment also is needed concerning this claim. 5. Entitlement to service connection for hypertension is remanded. The Board's prior October 2019 remand for a medical opinion instructed the VA examiner to opine on whether the Veteran's elevated blood pressure readings in service were the initial manifestations of his currently diagnosed hypertension even if not diagnosed until after his service. In a November 2019 VA opinion, the examiner concluded the Veteran's hypertension was less likely than not related to his service. As rationale, the examiner noted there was "no documentation in [the Veteran's] service records of persistent[ly] elevated blood pressure readings" and blood pressure on discharge was normal. But, in the June 2021 JMR, the parties agreed that there was not compliance with the Board's October 2019 remand instruction. Thus, more medical comment is needed concerning this claim, as well. Accordingly, these claims are REMANDED for the following still additional development and consideration: 1. Forward the claims file, including a complete copy of this remand and the Court-granted JMR, to an appropriate clinician(s) for supplemental comment (addendum opinions) concerning the etiologies of the Veteran's hypertension, right knee disability, and right and left ankle disabilities. Whether the Veteran again needs to be examined to provide this additional comment is left to the discretion of the clinician selected to provide these supplemental opinions. After reviewing the relevant evidence of record, including the Veteran's lay statements and hearing testimony, the examiner should address the following inquiries: (a) Whether it is at least as likely as not that any currently diagnosed hypertension is related to or dates back to the Veteran's military service, so including whether it originated during his service. In making this determination, the examiner must consider the elevated blood pressure readings in service in terms of whether they were the initial manifestations of hypertension even if not diagnosed until after conclusion of the Veteran's service. In a November 2019 VA opinion, the examiner concluded the Veteran's hypertension was less likely than not related to his service. As rationale, the examiner noted there was "no documentation in [the Veteran's] service records of persistent[ly] elevated blood pressure readings" and blood pressure on discharge was normal. *If the examiner agrees with this assessment, there must be more explanation of why there was no persistently elevated blood pressure during the Veteran's service suggestive or indicative of hypertension. (b) Whether the Veteran's Osgood-Schlatter disease of the right knee clearly and unmistakably preexisted his service and, if it did, whether it also clearly and unmistakably was not aggravated during or by his service meaning, according to 38 U.S.C. § 1153 and 38 C.F.R. § 3.306, not worsened beyond its natural progression. Alternatively, if the examiner determines there is not the required clear and unmistakable evidence of both pre-existence and non-aggravation, whether instead any currently diagnosed right knee disability, inclusive of the Osgood-Schlatter disease mentioned, was at least as likely as not incurred during the Veteran's service. (c) If, and only if, Osgood-Schlatter disease of the right knee is found to be service-related, also indicate whether it is at least as likely as not (a 50% or better probability) that any diagnosed right and/or left ankle disability was caused OR is aggravated by the Osgood-Schlatter disease of the right knee. *This latter opinion (subpart (c)) must address both causation and aggravation. Also, when responding to subpart (c), the examiner must remain mindful that a precedent case clarified that secondary service connection does not require "permanent" worsening of the condition being claimed by the service-connected disability. See Ward v. Wilkie, 31 Vet. App. 233 (2019). Secondary service connection is warranted for "any incremental increase in disability any additional impairment of earning capacity in non- service-connected disabilities resulting from service-connected conditions regardless of its permanence." Citing Allen v. Brown, 7 Vet. App. 439, 448 (1995). 2. Also, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any low back disability, particularly in relation to his military service. To assist in making this determination, the examiner should elicit from the Veteran a detailed history regarding the onset and progression of relevant symptoms. The Veteran's entire record, including a complete copy of this remand and the Court-granted JMR, must be made available to and reviewed by the examiner in conjunction with the examination. Based on this review of the record and the examination and interview of the Veteran, the examiner is asked to provide opinions responding to the following: (a) Identify by diagnosis each low back disability found or shown by the record and examination to exist or to have existed since the filing of this claim or proximate to that. (b) Identify the likely cause for each diagnosed low back disability. Specifically, is it at least as likely as not that such disability onset during the Veteran's service, or within a year of his discharge (if involving arthritis), or is otherwise related or attributable to his service including especially to his purported injury in service and claim that his back has continuously bothered him ever since. When responding, regardless of whether favorably or unfavorably, the examiner must provide rationale preferably citing to supporting evidence in the file and/or accepted medical authority. The absence of evidence of treatment for the Veteran's claimed disability in his service treatment records (STRs) cannot, at least alone, be the sole or exclusive reason for providing an unfavorable opinion, although this can be a consideration if explanation is provided as to why it is reasonable to have this expectation. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Poindexter 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.