Citation Nr: 21076191 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 10-32 420 DATE: December 22, 2021 REMANDED Entitlement to service connection for a back disability, to include as due to a service-connected disease or injury is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1970 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for a back disability, to include as due to a service-connected disease or injury is remanded. This matter was before the Board in September 2019, at which time the Board denied the claim. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In June 2020, pursuant to a Joint Motion for Remand (JMR) by the parties, the Court vacated the decision that denied the back disability claim, and returned it to the Board for further consideration consistent with the JMR. The matter was remanded by the Board in January 2021 and again in July 2021 to obtain adequate opinions consistent with the terms of the June 2020 JMR. Specifically, the June 2020 JMR noted that the February 2017 VA examination and February 2018 addendum opinion were inadequate as the examiner based these opinions on the inaccurate factual premise that the first notation of a back complaint was in 2000. The JMR went on to note the Veteran's 1976 report of discomfort in the back to a VA examiner, a 2015 statement by a VA examiner that found it reasonable to believe the Veteran's back could have been injured during a fall in service, and that the February 2017 examiner also acknowledged the Veteran's report that she had seen an orthopedist in service who told her she had a back sprain. Specifically, the February 2017 examiner noted in the medical history of the examination that in the military, the Veteran was the only corpsman available to lift a 200-pound Sergeant into bed and injured cartilage in left knee and had a pop in back then was seen by orthopedist who said it was just a back strain. The JMR agreed that the February 2017 examiner inconsistently found that the Veteran both had and did not have a back injury in service. The Parties to the JMR further agreed that the opinion said nothing as to whether the Veteran's altered gait at all aggravated her back and did not discuss a 2009 physical therapy note, which indicated that the Veteran still had lower back pain and walked with an antalgic gait favoring the left lower extremity. The last opinions of record were obtained in March and October 2021. In March 2021, the examiner opined that the back condition is less likely than not due to service. The examiner rationalized that there is no evidence of a back problem in service, and at separation the Veteran filled out, signed, and dated a history that stated she had no back problems of any kind and she had every opportunity then to report problems. The examiner unfavorably opined as to whether the condition was proximately due to or aggravated a service-connected disability, however, the Board found that the secondary opinions were inadequate in the July 2021 Board remand. Then, in October 2021, a separate examiner opined that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of, nor aggravated beyond its natural progression, by the service-connected condition. The examiner rationalized that there is no clear evidence from review of orthopedic literature to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb (including aggravation), unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5 cm. so that the individuals gait pattern has been altered to the extent that clinically there is an obvious Trendelenburg gait, and that this level of severity is not supported based on record review, history, or examination. The examiner indicated that it is not unusual for two joints to share properties in the same person, but one joint's disease does not spread to another or cause damage to it. The examiner cited to medical literature. The examiner also rationalized that the conditions of degenerative joint disease of the lumbar spine and limitation of left knee flexion are not medically related. The degenerative joint disease of the lumbar spine is a separate entity entirely from the limitation of left knee flexion. and unrelated to it and a thorough review of medical literature failed to demonstrate a causal relationship. The Board finds the March and October 2021 opinions inadequate. First, the March 2021 rationale does not discuss the Veteran's lay statements, including those as noted in the June 2020 JMR. Instead, in the March 2021 rationale, the examiner specifically states that there is no evidence of a back problem in service. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, here the examiner completely disregarded and failed to address the Veteran's 1976 report of discomfort in the back as well as the subsequent statements noted above. Hence, the Board finds that the opinion is still based on an inaccurate factual premise. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Second, the October 2021 opinions regarding secondary service connection share the examiner's same rationale. Nonetheless, although the rationale includes general discussion that an obvious Trendelenburg gait would suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, which the examiner indicated such level of severity was not supported in this case, as discussed in the June 2020, the examiner did not specifically discuss whether the Veteran's altered gait at all aggravated her back with note of the 2009 physical therapy note, that indicated that the Veteran still had lower back pain and walked with an antalgic gait favoring the left lower extremity. Id. Hence, the opinions are inadequate, and remand is warranted. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding the Veteran's claimed back disability. The claims file and a copy of this remand must be made available to the examiner and the examiner should note in the examination report that the claims folder and the remand have been reviewed. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Based on prior VA examination results and opinions, and a review of the record, the examiner should provide an opinion as to the following: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's back disability arose during service or is otherwise related to his military service. The examiner should explain why or why not, to include addressing the Veteran's report of back discomfort on VA examination in 1976, statements in August 1983 and May 1989 that her back pain is related to service, the August 2015 statement by the VA examiner that found it reasonable to believe the Veteran's back could have been injured during a fall in service, and the February 2017 examiner's acknowledgement of the Veteran's report that she was seen an orthopedist in service who told her she had a back sprain. (b.) If not caused by service, is it at least as likely as not (50 percent probability or better) that the Veteran's back disability has been caused by the service-connected knee conditions? Please explain why or why not. (c.) If not caused by the service-connected knee conditions, is it at least as likely as not that the Veteran's back disability has been worsened beyond the normal progression (aggravated) by the service-connected knee conditions? Please explain why or why not. (d.) If the examiner finds the back disability has been aggravated by the service-connected knee conditions, the examiner should attempt to quantify the degree of aggravation beyond the baseline level of back disability. The examiner should explain why or why not, to include addressing whether the Veteran's altered gait at all aggravated her back and the 2009 physical therapy note, indicating that the Veteran still had lower back pain and walked with an antalgic gait favoring the left lower extremity. A clear rationale must be provided for all opinions expressed. Mary E. Rude Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.