Citation Nr: 21074195 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 13-12 821 DATE: December 14, 2021 ORDER Entitlement to service connection for a low back condition is granted. The appeal concerning entitlement to service connection for an acquired psychiatric disorder, to include as secondary to the service-connected bilateral knee degenerative joint disease is dismissed. REMANDED Entitlement to a rating in excess of 10 percent for a right knee condition, including degenerative joint disease is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, her low back condition is at least as likely as not related to an in-service injury, event, or disease, including her injuries during active service in Korea. 2. On November 23, 2021, prior to the promulgation of a decision in the appeal, the Board of Veterans' Appeals (Board) received notification from the appellant through her authorized representative, that a withdrawal of the appeal concerning entitlement to service connection for an acquired psychiatric disorder is requested. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back condition have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for withdrawal of the appeal concerning entitlement to service connection for an acquired psychiatric disorder, to include as secondary to the service-connected bilateral knee degenerative joint disease by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1979 to December 1988. These matters come before the Board by a December 2020 order of the United States Court of Appeals for Veterans Claims (CAVC), in which the CAVC granted a Joint Motion for Partial Remand (JMPR), vacating and remanding the portions of the August 2019 Board's decision, which denied a rating in excess of 10 percent for a right knee condition and service connection for an acquired psychiatric disorder and a low back condition. The issues initially arose from April 2009 and November 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a March 2019 Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. SERVICE CONNECTION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a low back condition. The Veteran contends that she is entitled to service connection for a low back condition, which is related to her in-service injuries. In an October 2018 statement, the Veteran's representative asserted that the Veteran injured her back in 1981 and she received treatment for her back in 1983 during her service. At her March 2019 Board hearing, the Veteran testified that she was in Korea when she fell several times on a snowy airstrip hurting her back and breaking her wrist. Thus, the question for the Board is whether the Veteran has a current condition of low back that is at least as likely as not related to an in-service injury, event, or disease. The existence of a condition of the Veteran's low back is not in question because the examiner noted degenerative changes of back during the July 2012 VA examination, and the VA treatment records reflect the existence of chronic back pain. Regarding the in-service incurrence of injury, disease, or event, the Veteran has testified under oath that she suffered injuries to her back during her service in Korea. The Board finds the Veteran competent and credible regarding her reports of injuries. Also, the Board notes that the March 1983 service treatment record has a notation of low back pain syndrome and the Veteran's work involving lifting radios. The Veteran's personnel record reflects that she worked as a material supply specialist. A different March 1983 service treatment record has a notation of chronic low back pain with an assessment of mechanical low back pain. In a January 1985 report of medical history, the Veteran reported recurrent back pain. Hence, there is competent and credible evidence indicating the treatment of back pain during the Veteran's service. Therefore, the Board finds that the second element (in-service event, disease, or injury) of service connection is met. Lastly, regarding the causal relationship between the Veteran's current back condition and her active service there is evidence in favor of and against the claim. The evidence against the claim is the VA July 2012 medical opinion, in which the examiner opined that the Veteran's back condition was less likely than not incurred in or caused by service and attributed it to the natural aging process. The examiner also stated that the back pain in 1983 was attributed to ligamentous laxity secondary to pregnancy. There are several pieces of evidence in favor of the claim. As noted above, service treatment records have notations of back pain and treatment. There is an indication of increasing pain in lower back from arthritis as noted in the November 2002 VA treatment record. The August 2003 VA treatment record has a notation of degenerative joint disease of back. In a December 2011 medical opinion, the Veteran's therapist stated that he supplied the Veteran therapy treatment for her lumbar pain for years. The therapist stated that the Veteran continued to experience pain and required therapy. In a February 2012 letter from a VA physician, who was treating the Veteran at the Overton Brooks VA Medical Center, stated that the Veteran had chronic lower back pain that occurred in the late 1980's through the early 1990's. Finally, in October 2021, a private examiner after reviewing and listing the evidence of record provided a detailed positive nexus opinion linking the Veteran's back condition with her in-service flight line injuries. Regarding the July 2012 VA negative nexus opinion, the private examiner stated that the VA examiner was wrong in concluding that the back condition is normal aging process because if so every woman at age of 50 should be limping around. The examiner further stated that in support of her conclusion that the Veteran's lumbar degenerative disc disease (DDD) was not related to service, the June 2012 VA examiner stated, "She was treated for thoracic back pain in 1983 secondary to 'ligamentous laxity secondary to pregnancy'." However, the service treatment records from February 1983 documented "Musculo/skeletal strain," records from March documented "low back syndrome," and an orthopedic surgery consult also in March diagnosed "mechanical" low back pain. There was no mention in the notes of "ligamentous laxity" due to pregnancy. Even if there were, ligamentous laxity during pregnancy is a transient phenomenon which peaks in the second trimester before resolving in the third trimester and post-partum period. The presence of thoracic back pain during her pregnancy is irrelevant to the Veteran's history of lumbar DDD and radiculopathy. Then the examiner referred to medical literature and stated that the injured disc continues on an accelerated degenerative pathway and is less likely to recover from traumatic events that otherwise would have not caused symptoms. The Veteran's flight line injury and related pain symptoms are consistent with this phenomenon. Therefore, the Veteran's back condition is related to her in-service back injury. The Board finds that the October 2021 private positive nexus opinion has a greater probative value because the examiner supported the conclusion with evidence of record and medical literature, and also provided a detailed supporting analysis. Upon review of the record, the Board finds the evidence in favor or at least be in equipoise as to whether the Veteran's current back condition is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that entitlement to service connection for a back condition is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to the service-connected bilateral knee degenerative joint disease has been withdrawn. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, the Veteran through her authorized representative submitted the correspondence on November 23, 2021, stating that the Veteran wants to withdraw the appeal concerning entitlement to service connection for an acquired psychiatric disorder. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal. Therefore, the appeal concerning entitlement to a service connection for an acquired psychiatric disorder, to include as secondary to the service-connected bilateral knee degenerative joint disease is dismissed. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for a right knee condition, including degenerative joint disease is remanded. The Veteran filed her claim of service connection for a right knee disability in May 2008. In an April 2009 rating decision, the RO denied the entitlement to service connection for a right knee disability. The Veteran timely filed a notice of disagreement in August 2009. Subsequently, in a February 2013 rating decision, the RO granted entitlement to service connection for a right knee condition with a noncompensable rating from May 29, 2008, which is the beginning of the rating period on appeal. The Veteran timely filed a notice of disagreement in April 2013. In a March 2016 rating decision, the RO increased the rating of a right knee condition to 10 percent with an effective date of May 29, 2008. The RO also issued a statement of the case in March 2016, denying a rating in excess of 10 percent for a right knee condition. The Veteran time appealed the matter to the Board in May 2016. As noted above, in its August 2019 decision, the Board denied entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee, which was appealed by the Veteran to CAVC. In its December 2020 order, the CAVC granted a JMPR, vacating and remanding the portion of the August 2019 Board's decision, which denied a rating in excess of 10 percent for a right knee condition. In the December 2020 JMPR, the parties (the Veteran and the Secretary of VA) agreed that in denying a rating in excess of 10 percent for a right knee condition, the Board relied on the April 2017 VA examination, in which the examiner did not opine on the loss of range of motion (ROM) during flare-ups. Therefore, on remand, VA must obtain an opinion that includes the information regarding loss of range of motion during flare-ups. The parties also agreed that the Board failed to address whether a separate rating is warranted for a right knee instability because during the March 2019 Board hearing, the Veteran reported instability and in a June 2015 private examination, the examiner found moderate instability in both knees. Also, during the September 2015 VA examination, the Veteran reported giving out of her knees. Hence, pursuant to the CAVC order, the Board finds that a remand is warranted to afford the Veteran a new VA examination to determine the current severity of her right knee condition, and to obtain an opinion whether she has right knee joint instability. In this regard, the Board notes that, effective February 7, 2021, certain portions of 38 C.F.R. § 4.71a, which provide the ratings schedule for disabilities of the musculoskeletal system, were revised. The diagnostic code 5257, which provides the rating criteria for knee instability was also revised. Consequently, a remand is also warranted to schedule the Veteran for a new VA examination for her right knee condition that is consistent with new criteria. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, is remanded. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. TDIU can either overtly stated or implied by a fair reading of the claim or of the evidence of record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Entitlement to a TDIU should be considered based on the appealed increased rating claim. See Rice 22 Vet. App. at 453 (noting that a claim for a TDIU rating is part of an increased rating claim when such a claim is raised by the record). In this case, the record shows that the Veteran filed a claim for TDIU in August 2011, which was denied by the RO in a September 2012 rating decision and the September 2017 statement of the case. The Veteran did not appeal this denial to the Board. However, the Board finds that there is sufficient evidence in the record that raise the issue of implied TDIU as a part and parcel of the increased rating claims on appeal. In an October 2021 statement, the Veteran asserted that her knee, back, and ankle disabilities have impacted her ability to work. The November 2011 record from Social Security Administration reflects that the Veteran was determined disabled based on impairment of major joints. The entitlement to service connection for a low back condition has been granted in this decision, and the claim of increased rating for the Veteran's service-connected right knee disability is being remanded for further development, which may impact the Veteran's eligibility for TDIU. Hence, the Board concludes that a claim for TDIU has reasonably been raised by the record, and a remand is warranted for further development of the issue of entitlement to TDIU, as it is inextricably intertwined with the other claim being remanded. The matters are REMANDED for the following action: 1. Send appropriate notices and request the Veteran to complete the required form for substantiating a claim of entitlement to TDIU. Request the Veteran to provide specific dates of employments and income information for each employer. 2. Schedule the Veteran for a new VA examination to determine the nature and severity of the service-connected right knee disability. 3. The examiner is asked to provide an opinion on the severity and nature of the Veteran's service-connected right knee disability, including the symptoms manifested by instability, limitation of motion, including any decreased or estimated range of motion during flare-ups, from May 2008 to the present. In providing this retrospective opinion, the examiner should review the claims file, including the VA examinations from December 2011, July 2012, September 2015, and April 2017, along with symptoms reported by the Veteran during these examinations. The examiner should also review and address the June 2015 private knee examination that is associated with the claims file with entry dated 11/05/2015 titled "Medical Treatment Record Non-Government Facility," in which the examiner indicated that the Veteran had a moderate right knee recurrent subluxation or lateral instability; and the October 2021 private opinion that is associated with the claims file with entry dated 11/23/2021 titled "Medical Treatment Record Non-Government Facility," in which the examiner provided an opinion regarding the severity of the Veteran's right knee disability. The examiner should specifically opine whether the Veteran has a right knee recurrent instability; if so, what is the level of instability (slight, moderate, or severe) throughout the appeal period from May 2008 to the present, and was she ever prescribed or required a prescription from a medical provider for an assistive device (e.g., cane, crutches, walker) and/or bracing for ambulation? (Continued on the next page) A complete rationale for the opinion rendered must be provided. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 4. Thereafter, readjudicate the claims on appeal, including the issue of TDIU. If the benefit sought remains denied, issue the Veteran and her representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, 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.