Citation Nr: 21075590 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 13-03 487A DATE: December 20, 2021 REMANDED 1. Entitlement to a rating greater than 10 percent for residuals of right knee arthroplasty and chondroplasty prior to January 30, 2019, and greater than 20 percent, thereafter, is remanded. 2. Entitlement to service connection for a back disability is remanded. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. 4. Entitlement to basic eligibility to Dependents' Educational Assistance (DEA) under 38U.S.C.A. Chapter 35 is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1999 to September 1999. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2016, the Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO. A transcript of the hearing is of record. The case was most recently before the Board in May 2021. At that time, the Board remanded the present matters for further development and adjudication, to include consideration by the RO in the first instance, of VA-generated medical evidence associated with the claims file following the April 2019 supplemental statement of the case (SSOC). See Disabled American Veterans, et. al. v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); see also 38 C.F.R. § 20.1305(c). 1. A rating greater than 10 percent for residuals of right knee arthroplasty and chondroplasty prior to January 30, 2019, and greater than 20 percent thereafter. With respect to this claim, in its September 2017 decision, the Board noted that the April 2011 and March 2015 VA examinations did not, per 38 C.F.R. § 4.59, report range of motion in terms of the Veteran's active motion, passive motion, weight-bearing motion, and non-weight-bearing motion. The Board remanded the claim in an effort to correct those flaws. The Veteran was afforded VA examination in January 2019 in compliance with the Board's September 2017 remand directives. The examination report reflects that besides objective evidence of pain that causes functional loss, pain on weight-bearing, and that the Veteran is in regular need of a cane to assist with support and balance, his right knee flexion was 120 degrees and extension 15 degrees. In light of the foregoing, in a March 2019 rating decision, the RO increased the Veteran's disability rating from a 10 percent to a 20 percent rating effective January 30, 2019, the date on which the VA examination was conducted. The Board notes that the Veteran also reported instability described as his right knee "giving out," and the regular need of a cane for support of balance. Nevertheless, the examination report reflects that stability tests performed during the examination did not result in evidence of right knee instability. VA treatment records suggest a history of knee instability. See January 29, 2009 progress notes. Treatment records corresponding to the appeal period in question also reflect reports of chronic right knee pain with instability. See October 7, 2016 and July 28, 2018 progress notes. The Veteran was afforded a subsequent VA examination in May 2021. The report contains diagnoses for residuals of right knee arthroplasty and chondroplasty and osteoid osteoma of the right knee which the examiner indicated is a separate diagnosis not related to his service-connected right knee disability. The report shows that the Veteran requires the use of a cane occasionally and as needed. While the report suggests some improvement in terms of range of motion, the VA examiner ticked the box indicating "yes" to recurrent patellar instability. Notwithstanding, the examiner indicated that the Veteran does not have a history of instability or subluxation of the knee and that the newly diagnosed osteoid osteoma has no connection to the service-connected residuals of right knee arthroplasty and chondroplasty as medical literature does not support a connection. First, the Board notes that while the RO considered the January 2019 examination report sufficient to increase the Veteran's disability rating from 10 percent to 20 percent, the examination report does not contain a retrospective opinion regarding the severity of the right knee disability for the period prior to January 2019. As previously noted, the September 2017 Board remand sough clarification as to the severity of his right knee disability for the entire appeal period beginning in January 2011. As this question still remains unanswered, a remand for a retrospective opinion for the period prior to January 30, 2019 is warranted. Second, the medical evidence of record appears to be conflictive with respect to the Veteran's right knee instability. As noted, the January 2019 and May 2021 VA examiners indicated that there is no right knee instability or subluxation despite the Veteran's reports of his right knee "giving out," VA treatment records suggesting otherwise, the Veteran's endorsement of instability symptoms during his December 2016 Board hearing (see transcript, p.9), and the May 2021 VA examination report itself indicating the presence of patellar instability. As such, a remand for clarification of the conflictive medical findings is also necessary. Lastly, the Veteran was diagnosed with an additional right knee disability recorded as right knee osteoid osteoma. While the examiner noted that medical literature does not support a link between this disability and his service-connected residuals of right knee arthroplasty and chondroplasty, the examiner failed to cite, or at least at a minimum, explain in her rationale the literature considered and how it applies to the Veteran's particular circumstances. For the reasons set forth above, a remand is warranted for assessment of these fundamental aspects of the claim. 2. Service connection for a back disability as secondary to service-connected right knee arthroplasty. Now, with respect to the Veteran's back disability as secondary to service-connected for residuals of right knee arthroplasty and chondroplasty, the Veteran was afforded a VA examination in January 2019. At the outset, the Board notes that the nexus opinions with respect to causation and aggravation prongs of service connection on a secondary basis are inadequate to decide the Veteran's claim at this time. First, the examiner indicated that she "cannot opine whether or not the veteran's current low back disability is caused or aggravated by his service- connected residuals of right knee arthroplasty and chondroplasty. With respect to the causation prong, the VA examiner indicated that while the Veteran suffered a back injury in 2008, treatment records also noted another back injury 15 years prior (i.e., 1993) and that until those medical records from the first fall injury are available it is impossible to determine the cause of the Veteran's back condition. With respect to the aggravation prong, her rationale is limited to indicate that the Veteran underwent a back surgery in 2010 for his work-related back injury and that there are no medical records from his back specialist thereafter to determine any worsening of his back condition. The Board notes that the examiner's opinion may have been based on inaccurate or incomplete information. First, service treatment records (STRs) show that the Veteran was sound at entrance. See June 1999 entrance medical examination. The Veteran denied any history of back problems. See June 1999 Report of Medical History. Now, a May 2005 post-service VA progress note (prior to the Veteran's 2008 job-related back injury) shows that the Veteran reported that his right knee gave out as he was leaving his house, he fell backwards and hit his lower back with a wall and slid downwards to his buttocks. The health provider noted that the Veteran was very still, sore, and with muscle spasms from his lower back down to his legs. See May 13, 2005 progress notes. VA treatment records also show that the Veteran indeed, suffered a work-related back injury in 2008. Nevertheless, during his December 2016 Board hearing, the Veteran testified that he hurt his back as a result of his right knee giving out. VA treatment records reflect that the Veteran continued to complain of weakness, stiffness, and back and joint pain in 2007, again, prior to the 2008 back injury. See August 27, 2007 progress notes. During a 2010 physical therapy session, the Veteran reported pain in his low back, posterior thighs, and right knee which the physical therapist noted that they all stem "from the same problem." See August 21, 2010 progress notes from Peace River Regional Medical Center. The foregoing constitutes evidence in favor of the claim as to the causation prong, which in turn appears to have been disregarded by the January 2019 VA examiner. As to the aggravation prong, during his December 2016 Board hearing, the Veteran testified, in essence, that his back hurts when his right knee gives out. See Board transcript, p.9. The Veteran also argued that the altered gait due to his right knee disability impacts his lower back condition. See also January 2019 VA examination report (the Veteran stated that when his knee gives out and he does not catch himself, it takes longer to get up and get mobile as his back hurts). It is not clear whether the January 2019 VA examiner considered this evidence to reach her conclusion. This medical evidence is not listed or discussed in the report. For the reasons set forth above, the Board finds that the January 2019 VA examination is inadequate to decide the Veteran's claim and a remand is warranted for a new VA examination and opinion by an orthopedist specialist, to determine the nature and etiology of the claimed back disability, and upon consideration of the Veteran's lay statements and the medical evidence discussed above. 3. A TDIU. 4. Entitlement to DEA benefits. The service connection and increased rating claims previously discussed are inextricably intertwined with the TDIU claim, as they concern the occupational impairment due to the service-connected disabilities. See Harris v. Derwinski, 1 Vet. App. 180, 183(1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered); Ephraim v. Brown, 82 F.3d 399(Fed. Cir. 1996) (claims are inextricably intertwined when they have common parameters, such as when the outcome of one may affect the outcome of the other. And to avoid piecemeal adjudication of these types of claims, they should be considered together). Additionally, given that the issue of entitlement to DEA benefits under Chapter 35 is, in turn, inextricably intertwined with the issue of a TDIU, and since the issue of a TDIU is also being remanded, the claim for entitlement to DEA benefits must be also remanded to be considered and adjudicated accordingly. The matters are REMANDED for the following action: 1. Obtain and associate with the record all outstanding VA treatment records dated since January 2021. 2. Request from the Veteran, and assist in obtaining, any outstanding private treatment records in connection with these claims, to include records from Peace River Regional Medical Center. 3. Thereafter, schedule the Veteran for a VA examination by an orthopedic specialist to assess the severity of the Veteran's service-connected right knee condition for the entire appeal period beginning in January 2011. The record, including a complete copy of this remand, should be made available for review in connection with the examination. The examiner should provide retrospective and current findings in regard to pain on range of motion testing and an estimation of functional loss, per Correia, to include whether the Veteran has experienced any knee instability and whether he has been prescribed the use of assistive devices (e.g., a cane) for support and balance throughout the appeal period. The physician is asked, to the extent possible, to estimate the amount in degrees of range of motion lost due to pain in both weight-bearing and nonweight-bearing positions, and on both active and passive motion experienced by the Veteran at the time of VA examinations conducted in April 2011 and March 2015. 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. Thereafter, readjudicate the TDIU and DEA claims accordingly. If the benefits sought are not granted in full, issue an SSOC and return the matters to the Board for further appellate review. K. PARAKKAL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan, 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.