Citation Nr: 21073925 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 19-31 147 DATE: December 13, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim of service connection for an acquired psychiatric disorder, to include major depressive disorder, is granted. New and material evidence having been received, the application to reopen the previously denied claim of service connection for a back disability, to include as secondary to service-connected residuals of right knee medial meniscal tear (hereinafter "right knee disability"), is granted. New and material evidence having been received, the application to reopen the previously denied claim of service connection for a left foot disability, to include as secondary to service-connected right knee disability, is granted. Service connection for major depressive disorder is granted. A rating in excess of 20 percent for service-connected residuals of right knee medial meniscal tear (right knee disability), based on limitation of flexion, is denied. REMANDED Entitlement to service connection for a back disability, to include as secondary to service-connected right knee disability, is remanded. Entitlement to service connection for a left foot disability, to include as secondary to service-connected right knee disability, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In an unappealed August 2017 rating decision, the agency of original jurisdiction (AOJ) denied service connection for depression; evidence received since then relates to an unestablished fact and raises a reasonable possibility of substantiating the claim. 2. In an unappealed November 2013 rating decision, the RO denied service connection for a back disability; evidence received since then relates to an unestablished fact and raises a reasonable possibility of substantiating the claim. 3. In an unappealed June 2016 rating decision, the RO denied service connection for chronic left foot pain; evidence received since then relates to an unestablished fact and raises a reasonable possibility of substantiating the claim. 4. The Veteran has major depressive disorder that was incurred in service. 5. At no point during the appeal period did the Veteran's service-connected right knee disability manifest as symptoms more nearly approximating limitation of flexion to 15 degrees or less. CONCLUSIONS OF LAW 1. New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence having been received, the claim of entitlement to service connection for a back disability, to include as secondary to a right knee disability, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence having been received, the claim of entitlement to service connection for a left foot disability, to include as secondary to a right knee disability, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for entitlement to service connection for major depressive disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 5. The criteria for a rating in excess of 20 percent for residuals of right knee medial meniscal tear (right knee disability), based on limitation of flexion, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.27, 4.59, 4.71a, Diagnostic Code (DC) 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1980 to March 1986. This appeal is before the Board of Veterans' Appeals (Board) from August and November 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In his April 2020 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. In August 2021 correspondence, the Veteran advised that he no longer wanted a hearing, and the request for a hearing is deemed withdrawn. The matter of the Veteran's rating for right knee instability was initially addressed in the August 2018 rating decision, but the Veteran has chosen to pursue the issue separately in the modernized review system, also known as the Appeals Modernization Act (AMA). Therefore, that issue is not before the Board here. New and Material Evidence In the legacy system, the claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and, after a Statement of the Case has been furnished, filing a timely Substantive Appeal. The RO decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. § 19.20. Generally, a claim which has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of last final decision and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Veteran. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." 1. Whether new and material evidence has been received to reopen the claim of service connection for an acquired psychiatric disorder, to include major depressive disorder The Veteran's claim for service connection for an acquired psychiatric disorder, characterized as depression, was first denied in an August 2011 rating decision on the basis that the evidence did not relate any such condition to service. The Veteran did not appeal that rating decision, and as a result, the decision became final. In an August 2017 rating decision, the RO denied the Veteran's application to reopen the depression service connection claim, finding that new and material evidence had not been received; the Veteran again did not appeal, and the decision became final. In November 2018, the Veteran submitted an application to reopen the claim. In December 2018, the RO notified the Veteran that the claim could not be reopened because new and material evidence had not been received. Evidence in the record at the time of the August 2017 rating decision included STRs and VA treatment records. Pertinent evidence added to the record since the final August 2017 rating decision includes a December 2020 private medical evaluation report concerning the Veteran's current psychiatric disability and linking it to service. This evidence is new, because it was not previously of record when the prior final rating decision was made. The evidence is material, because it relates to unestablished facts necessary to substantiate the claim of service connectionspecifically, whether the Veteran has a psychiatric disability that is related to service. As the evidence is new and material, the claim is reopened. 2. Whether new and material evidence has been received to reopen the claim of service connection for a back disability, to include as secondary to a right knee disability The Veteran's claim for entitlement to service connection for a back disability was first denied in an August 2011 rating decision on the basis that the evidence did not show an in-service injury or event to which such disability could be related. The Veteran did not appeal, and rating decision became final. In a November 2013 rating decision, the RO denied the Veteran's application to reopen the service connection claim because new and material evidence had not been received. The Veteran did not appeal that rating decision and, as a result, the decision became final. In December 2018, the RO notified the Veteran that the back disability service connection claim could not be reopened, because new and material evidence had not been received. Evidence in the record at the time of the November 2013 rating decision included Service Treatment Records (STRs) and VA treatment records. Evidence added to the record since the final November 2013 rating decision includes, in pertinent part, VA treatment records from June 2015 to October 2015, as well as from May 2019, noting the Veteran to walk with an antalgic gait. Additionally, the Veteran submitted medical literature, received in August 2021, which indicating a possible causal link between back pain and limping. This new evidence is material, as it relates to an unestablished fact necessary to substantiate the claim of service connectionthat is, whether the Veteran has a back disability that is related to service or his service-connected right knee disability. As the evidence is new and material, the claim is reopened. 3. Whether new and material evidence has been received to reopen the claim of service connection for a left foot disability, to include as secondary to a right knee disability The Veteran's claim for entitlement to service connection for a left foot disability, claimed as chronic left foot pain, was first denied in a March 2010 rating decision. At that time, the claim was characterized as one for service connection for calcaneocuboid osteoarthritis of the left foot. The basis of the denial was that the evidence did not show that the Veteran's disability was related to either service or a service-connected disability. In a November 2013 rating decision, the RO denied his application to reopen the claim, for failure to submit new and material evidence. In a June 2016 rating decision, the RO again denied entitlement to service connection for chronic left foot pain, on the basis that the evidence continued to show that the Veteran's foot condition was not caused or aggravated by a service-connected disability; the Veteran did not appeal that rating decision, and it became final. In November 2018, the Veteran submitted an application to reopen the claim. In December 2018, the RO notified the Veteran that the claim could not be reopened, because new and material evidence had not been received. Evidence in the record at the time of the June 2016 rating decision included STRs, VA treatment records, and VA examination Disability Benefits Questionnaires (DBQs) from March 2010 and June 2016. Evidence added to the record since the final June 2016 rating decision includes, in pertinent part, VA treatment records reflecting that in September 2018 compensatory pain in the left foot due to the Veteran's right knee was noted, and in May 2019 the Veteran was noted to have had an antalgic gait and use a cane. This new evidence relates to the unestablished fact of whether the Veteran has a left foot disability secondary to a service-connected disability. As the evidence is new and material, and is neither cumulative nor redundant of the evidence previously of record, the claim is reopened. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). 4. Entitlement to service connection for major depressive disorder As reflected in his November 2018 claim, the Veteran seeks service connection for "depression." May 1984 Service Treatment Records (STRs) show that the Veteran was seen "[secondary to] spouse abuse incident last night." The Veteran reported one week of abuse during his three years of marriage, and reported that his wife was treated for a wound to her eye and for tenderness in the shoulder blades. The Veteran was "angry, hostile, [and] denying responsibility for the incident. Concerned [for his] career." The Veteran was prescribed one week of joint therapy and suspended for 45 days. At a follow-up appointment one week later with a clinical social worker, the Veteran exhibited "much denial and defensiveness," and reported his wife and himself were "O.K. now." A February 1986 STR shows that the Veteran was seen at the mental health clinic. The STR indicates that Personal Reliability Program (PRP) reporting was required, with an "expected" functional impairment of depression, along with possible drug use. On a February 1986 drug/alcohol abuse control program history and evaluation STR, dated approximately one week later, the Veteran reported using marijuana and alcohol to manage feelings of depression related to his family and job. The Veteran reported suicidal thoughts. It was noted that he was presently receiving mental health counseling and had received such counseling at his former base due to emotional and family problems. He was recommended to continue mental health counseling. A March 2016 VA primary care note states "PTSD after [motor vehicle accident] 1/3/2016 - MH referral." An April 2016 VA psychological assessment report shows positive posttraumatic stress disorder (PTSD) and depression screens. The examiner noted that he experienced symptoms of PTSD and moderately severe depression. His primary symptoms were noted as related to a January 2016 motor vehicle accident. A September 2017 VA psychologist's note shows diagnostic impressions of PTSD, alcohol use disorder, and cannabis use disorder. Under treatment goals, the provider noted "Understand what happened to me in the military so that I changed once I got out (e.g., legal history)." The Veteran specifically reported "I was a good kid when I went in... never got in any trouble...2 to 3 years after I got out I had a background sheet as big as a book." VA psychiatric treatment notes through 2017 show that the Veteran continued to be seen for anxiety following the motor vehicle accident. In December 2017, he reported to the same psychologist that he had difficulty sleeping due to nightmares and pain. He reported a history of trauma/abuse that included the motor vehicle accident in January 2016 and several concussions during service. An April 2018 VA psychiatry note shows complaint of severe anxiety. The Veteran was assessed with major depression, mild to moderate, chronic recurring without psychotic features. The treating physician ruled out PTSD, but also noted assessments of alcohol use disorder and cannabis use disorder. VA substance abuse treatment program (SATP) notes show that the Veteran attended sessions consistently, and often contributed, from August 2017 until he completed the program in February 2020. In October 2020, a private licensed psychologist, Dr. J.S., Ph.D., provided an independent medical evaluation report. Dr. J.S. reviewed the Veteran's claims file, including STRs, VA treatment records, and relevant lay and "ancillary" information, and conducted a "clinical interview" with the Veteran. Dr. J.S. set forth a thoroughly detailed discussion of the Veteran's relevant history, both during service and afterwards, and including a discussion of the Veteran's history of substance abuse. Dr. J.S. discussed the Veteran's history of psychiatric symptoms, whether as related to his self-medicating with illicit substances or otherwise. He discussed the Veteran's January 2016 motor vehicle accident. Dr. J.S. specifically stated that, upon concluding his review of the file, the Veteran met the DSM 5 diagnostic criteria for major depressive disorder, which was "the same condition the Veteran was experiencing in service," and which "was to the level of having suicidal thoughts during service, and to the level of making a suicide attempt soon after service." Dr. J.S. noted the in-service notations of emotional problems, including feeling mentally depressed and having suicidal thoughts, and receiving mental health counseling for emotional problems. He also noted, citing previous mental health notes, the Veteran's continuing mental health problems after service, including a suicide attempt shortly after service, and his post service diagnoses of major depression and depressive disorder. The October 2020 opinion from Dr. J.S. is the only opinion which addresses whether the Veteran has a current psychiatric diagnosis that is related to service. The opinion was based on an in-person examination of the Veteran and reflects consideration of all relevant facts, specifically including the STRs showing in-service mental health treatment; the post-service treatment records showing consistent treatment for psychiatric-related symptoms; and the Veteran's numerous statements made to various VA mental health providers. Given the above, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran has current major depressive disorder that was incurred in service. Accordingly, service connection for major depressive disorder must be granted. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Furthermore, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. During the pendency of the appeal, the criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 83 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes (DCs) "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. While DC 5260, the DC under which the Veteran's service-connected right knee disability is rated, was not amended, the Board may in some circumstances consider assignment of an additional disability rating under a different DC. However, the Board's analysis below sets out why a separate disability rating for the service-connected right knee disability, under a DC other than 5260, is not warranted in this case. 5. Entitlement to an increased disability rating for service-connected right knee disability The Veteran's service-connected right knee disability is rated as 20 percent disabling for the entire appeal period, under DC 5260 (limitation of flexion). Under that DC, a 10 percent disability rating is warranted for flexion limited to 45 degrees. Limitation of flexion to 30 degrees warrants a 20 percent disability rating. A 30 percent disability rating is assigned for flexion limited to 15 degrees or less. 38 C.F.R. § 4.71a. A June 2016 VA knee and lower leg conditions Disability Benefits Questionnaire (DBQ) shows that flexion tested to 120 degrees, with extension from 120 degrees to zero. Pain was noted on flexion and with weight bearing, though there was no additional functional loss, or range of motion loss, after three repetitions. The examiner was unable to estimate the extent of limitation of functional ability after repeated use over time. Muscle strength was normal on flexion and extension. There was no evidence of muscle atrophy or ankylosis, and no history of recurrent subluxation or lateral instability. The Veteran reported use of a brace. Concerning functional impact, the examiner noted although the Veteran would need time off of work after an upcoming knee surgery, there was "no objective evidence which would prevent the Veteran from continuing employment duties" after such recovery. An August 2017 VA knee and lower leg conditions DBQ shows flexion to 20 degrees and extension from 20 degrees to zero, causing an antalgic gait and inability to run. There was increased pain and swelling with increased activity, causing difficulty walking. Range of motion with repetitive use and flare-up was not measured. There was no evidence of pain with non-weight bearing. Muscle strength was normal with flexion and extension. There was no evidence of ankylosis, and no history of recurrent subluxation, lateral instability, or recurrent effusion noted. A July 2018 VA knee and lower leg conditions DBQ shows that the Veteran reported a progressive worsening of the right knee condition, including current symptoms of dully, achy, and sharp-like pain to the anterior, medial, and lateral aspects of the knee. Daily baseline pain was a 6/10, increasing to 9/10 with excessive and frequent ambulation. Functional loss, per the Veteran's report, was "inability to run/squat, inability to stand and sit for short periods of time and limited ability to go up and down stairs." Flexion was from 0 degrees to 70 degrees, and extension was from 70 degrees to 0 degrees. Pain was noted on flexion, including with weight bearing. The Veteran was unable to tolerate repetitive use testing due to pain. The examination was not conducted during a flare-up, but the examiner noted that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with flare-ups such that there would be no further limitation of motion during flare. Muscle strength was noted as 4/5 on flexion and extension, indicating active movement against some resistance. There was no evidence of ankylosis, and no history of recurrent subluxation, lateral instability, or recurrent effusion noted. Concerning functional impairment, the examiner noted that the Veteran's right knee disability impacted the Veteran's ability to perform occupational tasks as follows: "'[i]nability to run/squat, inability to stand /sit for short periods of time and limited ability to go up and down stairs' which is consistent with examination." There was objective evidence of pain when the right knee was used in non-weight bearing, though the examiner noted that passive range of motion was the same as active range of motion. A June 2021 DBQ prepared by a private physician notes functional limitation including "significant difficulty functioning and performing [activities of daily living]" due to right knee instability and pain. The private examiner noted active range of motion from -5 degrees to 90 degrees, and passive range of motion from -2 degrees to 100 degrees. The examiner noted "contributing factors of disability" to include less movement, weakened movement, excess fatigability, pain on movement, swelling, atrophy of disuse, instability of station, and disturbance of locomotion. The examiner noted a history of moderate recurrent subluxation, as well as an episode of right knee effusion in 2007 and "multiple episodes prior to this time." The examiner described the functional impact of the right knee disability as pain and instability upon standing for long periods, using stairs, walking long distances, and carrying objects. Based on the foregoing, the criteria for an increased disability rating for the Veteran's service-connected right knee disability are not met. As noted above, the Veteran is currently in receipt of a 20 percent disability rating for limitation of flexion, under DC 5260. Under that DC, the next higher rating (30 percent) would be warranted if the evidence showed a disability picture approximating flexion limited to no more than 15 degrees. As demonstrated by each of the VA right knee examination reports since 2016, his flexion has tested to greater, and usually significantly greater, than 15 degrees at all times during the appeal period. This includes consideration of additional limitation of motion during repetitive use testing, during flare-ups, and with both active and passive motion. While the evidence certainly shows painful motion with flexion, the evidence also shows that such pain did not limit his flexion to 15 degrees or less. As a result, a disability rating in excess of the currently assigned 20 percent, based on limitation of flexion, is not warranted. Nonetheless, a veteran who has both compensable limitation of flexion and limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 (flexion) and 5261 (extension) to be adequately compensated for functional loss associated with injury to the leg. See VAOPGCPREC 9-04 (September 17, 2004). Under DC 5261, a 10 percent disability rating is warranted for extension of the leg limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent disability rating is warranted for leg extension limited to 20 degrees. Extension limited to 30 degrees warrants a 40 percent rating. Finally, extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a. In this case, the VA right knee examination DBQs, and the private June 2021 DBQ, reflect that the Veteran's right knee disability picture has not approximated the criteria for assignment of a compensable rating under DC 5261. Specifically, each report reflects that the Veteran's right knee disability picture did not manifest as extension of the leg limited to 10 degrees or greater at any point during the appeal period. As so, a separate rating under that DC is not warranted. As noted above, the Veteran is also in receipt of a separate disability rating for the service-connected right knee disability, based on instability (DC 5257), which is not currently before the Board. Furthermore, the Board finds that assignment of a separate rating under any of DCs 5256 (ankylosis), 5258 (dislocated semilunar cartilage with frequent episodes of "locking," pain, effusion into the joint), 5259 (symptomatic removal of semilunar cartilage), 5262 (tibia and fibula impairment), or 5263 (genu recurvatum) is not warranted. The Veteran's right knee disability symptoms, including pain, decreased movement, weakened movement, excess fatigability, pain on movement, swelling, instability of station, and disturbance of locomotion have been considered and are contemplated in his 20 percent rating under DC 5260. Based on the foregoing, the weight of the evidence reflects that assignment of a disability rating in excess of the currently assigned 20 percent, for service-connected right knee disability based on limitation of flexion, is not warranted. Therefore, the claim for such must be denied. REASONS FOR REMAND 6. Entitlement to service connection for a left foot disability, claimed as chronic left foot pain The Veteran contends that he is entitled to service connection for a left foot disability, to include as secondary to his service-connected right knee disability. He specifically contends that his service-connected right knee disability causes him to favor his left foot, causing an antalgic gait and resulting in left foot pain. See, e.g., Veteran's August 2021 Memorandum of Law. The Veteran was afforded VA left foot examinations in March 2010 and June 2016. The March 2010 examiner diagnosed calcaneocuboid osteoarthritis which was less likely than not related to service. In the rationale supporting the opinion, the examiner noted that the arthritis was likely degenerative or post-traumatic in nature, but may be due to abnormal loading secondary to favoring his left lower extremity from his right knee surgery. Although he seems to have a normal gait pattern he still claims to be favoring his left lower extremity somewhat. Therefore his left foot calcaneocuboid arthritis is less likely as not caused by or a result of residuals from his right knee service-connected condition. The June 2016 VA examiner opined that the Veteran had current diagnoses of gout of the left great toe, moderate hallux valgus and bunion formation of the left foot, and mild degenerative joint disease [DJD] of the first metatarsophalangeal joint and talonavicular joint. The examiner opined that there was no "objective evidence to support a nexus for gout of the left great toe due to the [service-connected] right knee condition. The review of current medical literature fails to provide objective evidence to support a nexus for hallux valgus, bunion, DJD of the first [metatarsophalangeal joint] and/or DJD of the talonavicular joint due to or aggravated by the [service-connected] right knee condition." A September 2018 VA podiatry note states "[r]ight knee is also persistently problematic and this causes compensatory pain in left foot." A May 2019 VA kinesiology note indicates a "mildly antalgic gait." The March 2010 opinion is internally inconsistent, as the examiner suggested that the evidence may indicate a link between the right knee and the left foot, and then opined otherwise based on that same evidence. The June 2016 VA opinion, while referencing the "medical literature," did not explain how any of the medical literature applied to the unique facts of the Veteran's left foot disability picture, and specifically whether any abnormal gait due to the Veteran's right knee might cause or aggravate his left foot disability and why or why not. Moreover, when viewed in light of the VA treatment records that have since been added to the record, a clarifying opinion that considers the entirety of the relevant evidence, to include the September 2018 and May 2019 VA notes discussed above, is necessary. Therefore, remand is necessary to obtain such an opinion. 7. Entitlement to service connection for a back disability The Veteran contends that he is entitled to service connection for a back injury, to include as secondary to his service-connected right knee disability. Specifically, he asserts that he walks with an antalgic gait, caused by his service-connected right knee disability, which causes back pain. The Veteran underwent a right knee arthroscopic examination, partial medial meniscectomy, synovectomy of the medial joint space, and open excision of the tibial tubercle in April 2002. An April 2002 VA outpatient note, prepared approximately one week later, indicates a diagnosis of "back disorder [not otherwise specified]." Approximately one month later, the Veteran reported "severe low back pain." VA treatment records, including from May 2002 to August 2018, show that he was consistently assessed with chronic low back pain. As noted above, in August 2021 the Veteran submitted medical literature concerning the medical relationship between limping, or pain in the lower extremities, and low back pain, and indicating a possible causal link between back pain and limping. In light of this evidence, the Veteran should be afforded a VA examination to determine whether any back disability might be secondary to his service-connected right knee disability. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). 8. Entitlement to a TDIU The Veteran has variously reported that his right knee disability limits his ability to perform tasks which would be required of employment. Specifically, he has reported at his VA examinations from July 2018 to the present that his right knee causes difficulty with sitting or standing in the same place for extended periods of time. Also, in his December 2020 report, Dr. J.S. indicated that the Veteran was not employable as the result of his major depressive disorder, for which the Board is granting service connection. Given the above, the issue of TDIU has been reasonably raised in connection with the issues on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the TDIU issue is intertwined with the issues being remanded, and with the initial rating for the Veteran's major depressive disorder to be assigned by the AOJ in the first instance, the TDIU issue must also be remanded. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an orthopedist, if possible, to determine the nature and etiology of any back or left foot disability. The examiner should identify any current back and left foot disability, and for each disability, opine as to whether it is at least as likely as not (i.e., a 50 percent likelihood or greater) that the disability is caused by, or aggravated by, the Veteran's service-connected right knee disability. In so opining, the examiner should consider all relevant medical evidence in the record, whether originating privately or from a VA facility, to include: the September 2018 VA podiatry note stating "[r]ight knee is also persistently problematic and this causes compensatory pain in left foot"; the May 2019 VA kinesiology note indicating a "mildly antalgic gait"; the medical literature submitted by the Veteran in August 2021; and the April 2002 and May 2002 VA treatment records showing that the Veteran complained of low back pain. The examiner should specifically address the relevance, if any, of the VA treatment records which indicate an antalgic gait and which suggest a worsening in low back or left foot pain due to overuse caused by the Veteran's service-connected right knee disability. The entire claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. A thorough rationale must accompany all opinions formed and conclusions drawn. (Continued on the next page) 2. After completing the above and any other necessary development, readjudicate the issues remaining on appeal, to include entitlement to a TDIU. If any benefit sought remains denied, provide a supplemental statement of the case to the Veteran. Andrew Mack Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.