Citation Nr: A21020035 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 190225-3137 DATE: December 15, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran had active service with the United States Army from July 1971 to July 1974. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The Veteran chose to participate in VA's test program RAMP, the Rapid Appeals Modernization Program. This decision has been written consistent with the new AMA framework. The Board notes that the rating decision on appeal was issued in December 2014. The Veteran selected the Higher-Level Review lane when he submitted a RAMP election form on February 6, 2018. Thus, in February 2018, the Veteran elected the modernized review system. See 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38C.F.R. §19.2(d)). An April 2018 RAMP rating decision considered the evidence of record as of the date VA received the RAMP election form. In February 2019 the Veteran timely appealed to the Board this RAMP rating decision to the extent that it denied his claims of entitlement to service connection for disabilities of the back and knees and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). In August 2019, a Veterans' Law Judge not the undersigned issued a Board of Veterans' Appeal (Board) decision that denied the above claims. The Veteran appealed the August 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2021 decision, Judge Greenberg vacated and remanded the August 2019 Board decision. Lastly, the Board notes that VA treatment records were added to the claims file during a period of time when new evidence was not allowed. Similarly, the Veteran's representative in an April 2019 brief referenced medical literature during a period of time when new evidence was not allowed. Therefore, the Board may not consider this evidence. See 84 Fed. Reg. 138, 182 (Jan. 18, 2019) (to be codified at 38C.F.R. §20.300). The Veteran may file a Supplemental Claim and submit or identify this evidence.84 Fed. Reg. 138, 182 (Jan. 18, 2019) (to be codified at 38C.F.R. §3.2501). If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Entitlement to service connection for a back as well as right and knee disabilities are remanded. As to all the issues on appeal, the Court vacated and remanded the August 2019 Board decision because, in substance, it found that the following actions by regional office (RO) before adjudicating the claims was a duty to assist error as defined by 38 C.F.R. § 20.802(a): Not seeking clarification as to how the January 2018 VA knee examiner reached the opinion "...that a '[r]eview of [CPRS] dating back to 2001 reveals [a] diagnosis of knee problems [in the] 2008 [timeframe] which is long after exit from [service] and therefore [without] [a] nexus link to [service]" "... when (1) an April 2009 VA treatment record states that the appellant suffered from osteoarthritis of the right knee and the condition had progressed to the point that the appellant's knee was 'almost bone-on-bone,' prompting the treatment provider to recommend a knee replacement ....[,] a (2) x-rays taken in in October 2009 of the appellant's left knee revealed DJD...," and (3) the 2008 CPRS noted 6 months of problem with the back and a diagnosis of degenerative joint disease of the back since 2002; and "... not addressed the competence or credibility of the appellant's lay statement concerning the continuing treatment since service..." "...for his bilateral knee and back conditions [to include the statement]... [i]n April 2015 [where]... the appellant stated that he received treatment for his knees and back during service and was still receiving treatment at that time ... " Therefore, the Board finds that a Remand is required to attempt to obtain a clarifying VA opinion as to the etiology of the Veteran's back and bilateral knee disabilities as well as to have the RO readjudicate the claims taking into account the appellant's lay statement concerning continuing treatment since service. See Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled). The appeal is REMANDED for the following actions: 1. To comply with the May 2021 Court decision, schedule the Veteran for a VA examination with a suitably-qualified medical professional to obtain a clarifying VA opinion as to the etiology of the Veteran's back and bilateral knee disabilities. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: a. Provide diagnosis for all back, right knee, left knee disabilities. b. As to each diagnosed disability, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it had its onset directly during the Veteran's service or is otherwise related to any event or injury during service. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any arthritis manifested in the first post-service year. In providing answers to the above questions the examiner should specifically consider the Veteran's service treatment records. To comply with the May 2021 Court decision, in providing answers to the above questions the examiner should specifically consider the competent lay claims from the Veteran regarding observable adverse symptomatology to include, among other things, the following: i. "... In April 2015 [where]... the appellant stated that he received treatment for his knees and back during service and was still receiving treatment at that time ...". To comply with the May 2021 Court decision, in providing answers to the above questions the examiner should specifically consider the post-service medical records to include, among other things, the following: i. "... an April 2009 VA treatment record [that] states that the appellant suffered from osteoarthritis of the right knee and the condition had progressed to the point that the appellant's knee was 'almost bone-on-bone,' prompting the treatment provider to recommend a knee replacement ....;" ii. "... x-rays taken in in October 2009 of the appellant's left knee revealed DJD...;" and iii. the 2008 CPRS that noted 6 months of problem with his back and a diagnosis of degenerative joint disease of the back since 2002. In providing answers to the above questions the examiner is also advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing answers to the above questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. (Continued on the next page) If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. To comply with the May 2021 Court decision, the RO after undertaking the above development should again adjudicate the claims taking into account, among other things, the above VA examiner's etiology opinions and the appellant's lay statement concerning continuing treatment since service..." "...for his bilateral knee and back conditions [to include the statement]... [i]n April 2015 [where]... the appellant stated that he received treatment for his knees and back during service and was still receiving treatment at that time John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.