Citation Nr: 21005267 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 09-29 082 DATE: February 1, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to an increased rating in excess of 20 percent prior to April 8, 2015, and in excess of 40 percent thereafter for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1984 to March 1985, as well as in May 2000. These matters are on appeal to the Board of Veterans’ Appeals (Board) from November 2008 and May 2010 rating decisions. A hearing was conducted in 2012, and the transcript has been associated with the record. Both claims have lengthy procedural histories. Most recently, the Court of Appeals for Veterans’ Claims (Court), pursuant to a September 2020 Joint Motion for Remand (JMR), vacated and remanded an October 2019 Board decision denying both claims. In accordance with the JMR, the Board must remand the claims. 1. Entitlement to service connection for a low back disability The Veteran contends his current degenerative disc disease (back disability) is a result of or related to an injury incurred while stationed at Fort Sill in 1985. Alternatively, he contends his back disability is caused or aggravated by his service-connected right knee disability. The Veteran most recently underwent a VA examination in August 2018. The examiner was requested to consider and address service treatment records (STRs) that show complaints and treatment for chronic low back pain in 1985, as well as competent lay evidence of continued back pain since service. The examiner remarked that the lay evidence appears competent; however, based on the STRs, the Veteran’s back disability is less likely than not related to service. Other than the two-month period of back pain documented during active duty, the examiner found no objective evidence of the existence of a chronic back condition during either period of active service. Thus, she opined it is less likely than not that the slight narrowing at L5-S1 shown during the September 1985 examination is (1) sufficient evidence to establish the presence of degenerative disc disease at that time or (2) evidence of the initial manifestation of the current degenerative disc disease because a 1985 X-ray while the Veteran was symptomatic was within normal limits. The claim must be remanded for a new VA examination to adequately consider and address the Veteran’s lay statements of continued pain since service that are found in various records in the claims file, to include records provided by the Social Security Administration. Additionally, an opinion on whether the back disability is caused or aggravated by the Veteran’s service-connected right knee disability must be obtained. 2. Entitlement to an increased rating in excess of 20 percent prior to April 8, 2015, and in excess of 40 percent thereafter for a right knee disability The Veteran filed an increased rating claim in January 2009 contending his knee disability had worsened. In May 2010, a rating decision continued the Veteran’s 20 percent rating; however, a subsequent May 2016 rating decision increased his rating to 40 percent effective April 8, 2015. As such did not constitute a full grant of the benefit sought on appeal, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran most recently underwent a VA examination in August 2017. The examination includes ranges of motion (ROM) for active ROM and notes pain on weight-bearing. However, the examination is inadequate as not all results of ROM testing were provided for testing under passive, weight-bearing, and nonweight-bearing conditions. See Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016); 38 C.F.R. § 4.59. Thus, remand is required for a new examination. The matters are REMANDED for the following action: 1. Obtain a new opinion to determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s back disability is related to his in-service back injury. In answering the foregoing, the examiner should review the entire record and consider and address the service treatment records that show complaints and treatment for low back pain in January to February 1985. The examiner should also consider and address the lay evidence of continued back pain since service, as well as notations of back pain in post-service medical records and VA examinations. A full rationale must be provided for each conclusion. It is emphasized that a “medical examiner cannot rely on the absence of medical record corroborating [an] injury to conclude that there is no relationship between the appellant’s current disability and [her] military service.” Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). A medical opinion must consider whether the lay statements present sufficient evidence of the etiology of the disability such that service connection could be proven without contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336 n.1 (2006). Additionally, the examiner must opine whether it is at least as likely as not that the Veteran’s back disability is caused OR aggravated by his service-connected right knee disability. If the examiner finds there is aggravation, the examiner must also indicate the extent of such aggravation by identifying the baseline level of disability. 2. Obtain a new examination to determine the current severity and manifestations of the Veteran’s right knee disability. Any indicated evaluations, studies, and tests should be conducted and evaluations should be performed. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing, for the right knee. The examiner should also indicate whether and the extent to which the Veteran’s right knee is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in additional functional loss. To the extent possible, the examiner must express any functional loss in terms of additional degrees of limited motion (flexion and extension). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also address (1) whether there is additional functional loss during flare-ups and after repetitive use as a result of pain and (2) at what point during range of motion the pain results in functional loss during flare-ups and   after repetitive motion; or explain why such a calculation is not feasible. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Carroll, 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.