Citation Nr: 21006463 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 12-16 619 DATE: February 4, 2021 REMANDED 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from June 1975 to August 1977. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision. In April 2015, the Board remanded the matters for additional development. An August 2017 Board decision denied service connection for right knee, bilateral hip, and low back disabilities. [The decision also dismissed an appeal seeking an increased rating for a left knee disability.] The Veteran appealed the Board’s August 2017 decision to the U.S. Court of Appeals for Veterans Claims (CAVC). Pursuant to a May 2018 Joint Motion for Partial Remand (JMPR) filed by the parties, the CAVC vacated and remanded the part of the Board’s decision which denied service connection for right knee, bilateral hip, and low back disabilities, and remanded the matters back to the Board for additional action. [The JMPR also noted that the Veteran was not pursuing the issue seeking an increased rating for a left knee disability, and that issue was dismissed.] A May 2018 CAVC Order remanded the matters for compliance with the JMPR instructions. In March 2019, the Board remanded the matters for additional development in accordance with the JMPR. A July 2020 rating decision granted service connection for left and right hip disabilities. Accordingly, the matter of service connection for a bilateral hip disability is no longer before the Board. [On October 6, 2020, the Board sent the Veteran a letter advising him that he could request a virtual tele-hearing instead of waiting for a Travel Board hearing. Upon further review, it was found that he did not have a pending hearing request.  Four months have passed; neither he nor his representative have elected to accept the offer for such hearing.] 1., 2. Entitlement to service connection for right knee and low back disabilities In the May 2018 JMPR, the parties agreed that remand was warranted because the June 2016 VHA opinion (with February and April 2017 addenda) “are inadequate in that none of the three opinions provide an adequate rationale regarding the question of aggravation.” The parties noted that the VHA opinions were internally contradictory, and agreed that, “On remand, the Board must obtain a medical opinion addressing whether the [Veteran’s] service-connected left knee disability, including as due to an altered gait, could have aggravated the claimed right knee, bilateral hip, or low back disabilities.” The parties specifically requested “that a different VA physician provide the future medical opinion” [emphasis added]. In March 2019, pursuant to the May 2018 JMPR, the Board remanded the matters for an examination to ascertain the nature and etiology of the Veteran’s right knee and low back disabilities (specifically including addressing a secondary service connection theory of entitlement) by an orthopedic physician (other than the June 2016 examiner). In January 2020, the Veteran underwent VA (fee basis) knee and back examinations by a nurse practitioner. Based on the parties’ request in the May 2018 JMPR “that a different VA physician provide the future medical opinion,” the Board has no recourse but to order another examination by a VA physician to ensure compliance with the JMPR. Remand is further necessary because several of the medical opinions by the January 2020 nurse practitioner examiner are inadequate for rating purposes. The examiner provided negative direct nexus (to service) opinions based solely on a lack of proof of chronicity of care in the claims file. However, absence of documentation of complaints or treatment for a disability during or after service cannot be the sole basis for an opinion. See Dalton v. Peake, 21 Vet. App. 23 (2007). She also provided negative aggravation (by the Veteran’s service-connected left knee disability) opinions, but the rationale for those opinions is based on findings of a lack of evidence in medical literature that an altered gait “can cause” contralateral knee strain, or that lumbar spondylosis is “caused by” an altered gait. The rationales do not address whether the right knee and low back disabilities are aggravated by his left knee disability. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-141 (2013) (indicating that findings of “not due to,” “not caused by,” and “not related to” a service-connected disability are insufficient to address the question of aggravation). Accordingly, remand for an adequate medical opinion is necessary. The matters are REMANDED for the following: 1. Secure for the record complete updated (any not already in the record) clinical records of all VA evaluations or treatment the Veteran has received for his right knee and low back disabilities. 2. After the development requested above is completed, forward the Veteran’s record to an appropriate physician (other than the June 2016 and January 2020 examiners) for an advisory medical opinion regarding the nature and likely etiology of his right knee and low back disabilities. The entire record (to include this remand and any newly obtained records) must be reviewed by the examiner. [If further examination of the Veteran is deemed necessary, such should be arranged.] The examiner should provide opinions that respond to the following: (a) Identify (by diagnosis) each right knee and low back disability shown during the pendency of the claim. (b) Identify the likely etiology for each right knee and low back disability entity diagnosed. Is it at least as likely as not (a 50% or better probability) that they were incurred during the Veteran’s active service? (c) If the response to (b) is No, is it at least as likely as not (a 50% or better probability) that any diagnosed disability was caused or aggravated by the Veteran’s service-connected left knee disability, to include as due to an altered gait due to a left knee disability? The opinion must address aggravation. (d) If a right knee or low back disability is found to not have been caused, but to have been aggravated by the left knee disability, identify the baseline severity of such disability prior to the aggravation and the level of severity of the disability following aggravation. The examiner must include rationale with all opinions, citing to supporting factual data and/or medical literature, as deemed appropriate. [If an opinion sought cannot be provided without resort to speculation, it must be so stated for the record, with explanation why that is so.] GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, 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.