Citation Nr: A21020010 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 190603-13343 DATE: December 15, 2021 ORDER Entitlement to service connection for a low back disability, to include degenerative arthritis, spinal stenosis, and intervertebral disc syndrome is granted. REMANDED Entitlement to a compensable disability rating for right knee instability is remanded. Entitlement to a disability rating in excess of 10 percent prior to May 7, 2019, and in excess of 30 percent as of July 1, 2020, for a right knee disability is remanded. Entitlement to a disability rating in excess of 10 percent for left knee strain is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDING OF FACT It is at least as likely as not that the Veteran's current low back disabilities were caused by his service-connected right knee disability. CONCLUSION OF LAW The criteria for service connection for a low back disability as secondary to a service-connected right knee disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.310 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from September 1971 to June 1972. A rating decision was issued under the legacy system in May 2015 and the Veteran submitted a timely notice of disagreement. In April 2019, the agency of original jurisdiction (AOJ) issued a statement of the case (SOC). The Veteran opted the claims into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a June 2019 VA Form 10182, Decision Review Request: Board Appeal, identifying the April 2019 SOC. Therefore, the April 2019 SOC is the decision on appeal. In the April 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the April 2019 SOC, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). In January 2021, the Veteran testified before the undersigned at a Board hearing held via videoconference. A transcript of that hearing is of record. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. Neither the Veteran nor his attorney have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for a low back disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). A September 2018 thoracolumbar spine examination noted diagnoses of degenerative arthritis of the spine, spinal stenosis, and intervertebral disc syndrome. The Veteran does not contend that his back disabilities were incurred during or caused by his period of active service. Rather, the Veteran asserts that his back disabilities are caused or aggravated by his service-connected right knee disability. In a January 2021 Board Hearing, the Veteran testified that his back pain had its onset in 2010 and is caused or aggravated by his altered gait resulting from his service-connected left knee disability. Following an in-person examination and review of the Veteran's medical records, the examiner concluded it was less likely than not that the Veteran's back disabilities were proximately due to or a result of the Veteran's service-connected knee disability. The examiner opined that the conditions were not medically related. The examiner reasoned that the Veteran's back and service-connected right knee were separate and unrelated entities, and that strain in the Veteran's knee would not cause his arthritis or spinal stenosis. The examiner's opinion regarding causation is adequate because it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because it describes his back disabilities in detail sufficient to allow the Board to make a fully informed determination. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). The Board notes that the examiner did not submit an opinion regarding aggravation of the Veteran's back disabilities. Conversely, in March 2021, the Veteran submitted a private medical opinion finding that it was more likely than not that the Veteran's back disabilities were caused by his service-connected right knee disability. The opinion discussed the Veteran's altered gait and the impact the altered gait has on his thoracolumbar spine. The examiner reasoned: It is a well-settled medical fact that degenerative disc disease is in fact a condition that is often related to a traumatic event, including cumulative traumas. In addition, mechanical, genetic and nutritional factors may affect the integrity of the intervertebral discs. Further, subsequent to any traumatic event, degenerative (arthritic) conditions may take anywhere from two (2) to twenty (20) years to develop. Given the above, it is as least as likely as not that this gentleman's degenerative lumbar spine issues developed concomitant along with his left knee degenerative condition due solely to his right knee, which is service-connected. Therefore, it is as least as likely as not that this gentleman's degenerative arthritis of the lumbar spine, intervertebral disc syndrome, and spinal stenosis are service-connected. The March 2021 opinion was completed after review of the Veteran's medical treatment records. The Board finds that the March 2021 opinion is thorough and well-reasoned. As the March 2021 opinion does discuss aggravation and considers the Veteran's lay statements regarding his altered gait and the onset of back pain as a result, the Board finds the March 2021 opinion to be of higher probative value than the September 2018 examiner's opinion. Based on the medical evidence discussed above, the Board finds that it is at least as likely as not the Veteran's back disabilities were caused by his service-connected right knee disability. Entitlement to service connection for a low back disability, to include degenerative arthritis, spinal stenosis, and invertebral disc syndrome is warranted. REASONS FOR REMAND 1. Entitlement to a compensable disability rating for right knee instability 2. Entitlement to a disability rating in excess of 10 percent prior to May 7, 2019, and in excess of 30 percent as of July 1, 2020 for a right knee disability 3. Entitlement to a disability rating in excess of 10 percent for left knee strain The Veteran underwent a VA examination in September 2018. He reported experiencing flare-ups in both knees. During the examination, the examiner stated that they were not able describe the Veteran's flare-ups in terms of range of motion because "[i]t is not possible to determine, without resorting to mere speculation, to estimate loss of range of motion, because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions." This is precisely the type of reasoning that was rejected in Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examination report was inadequate with respect to the Veteran's reported flare-ups. The AOJ should have requested that the examiner adequately address flare-ups or provide the Veteran with a new examination. This occurred prior to the April 2019 determination on appeal, and therefore is a pre-decisional duty-to-assist error. A remand is appropriate to obtain a new examination. 4. Entitlement to service connection for an acquired psychiatric disorder Following an in-person examination and review of the Veteran's medical treatment records, a September 2018 medical opinion concluded that the Veteran did not have a current mental disorder diagnosis. However, this opinion is contradicted by VA medical records from May 2014 and December 2014. At a May 2014 psychology consult, the Veteran's psychologist diagnosed insomnia and stated that his Insomnia Severity Index score was 18, which "suggested Clinical Insomnia, Moderate intensity." The Veteran reported struggling with insomnia "for years." The diagnosis of insomnia was reiterated at a December 2014 treatment appointment. The September 2018 examiner did not address the Veteran's diagnosis of insomnia. The AOJ should have sought an addendum opinion to address the fact that the Veteran had been previously diagnosed with insomnia. This occurred prior to the April 2019 determination on appeal, and therefore is a pre-decisional duty-to-assist error. A remand is appropriate to obtain an addendum opinion. Accordingly, the matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Additionally, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for an examination with an appropriate clinician for claimed acquired psychiatric disorder. The examiner must provide an opinion as to: a. Does the Veteran have a current acquired psychiatric disorder? b. If so, whether the Veteran's acquired psychiatric disorder is at least as likely as not proximately due to pain and functional limitation from his service-connected disabilities. c. Whether the Veteran's acquired psychiatric disorder is at least as likely as not aggravated beyond its natural progression by pain and functional limitation from his service-connected disabilities. Although an independent review of the claims file is required, the examiner's attention is drawn to the May 2014 and December 2014 VA treatment records noting diagnoses of insomnia. If it is determined that the Veteran does not have a current acquired psychiatric disorder, the examiner's reasoning should specifically address the current unspecified depressive disorder noted in the Veteran's VA treatment records. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Riordan, 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.