Citation Nr: 21006780 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 14-35 239A DATE: February 5, 2021 REMANDED Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected right knee disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from December 1975 to April 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Veteran testified at a videoconference hearing before a Veterans Law Judge. However, the Veterans Law Judge that conducted the hearing is no longer employed by the Board. A transcript of the hearing has been associated with the record. In December 2018, the Board notified the Veteran of the fact that the Veterans Law Judge that conducted the hearing was no longer employed by the Board and that he was provided the opportunity to testify at another hearing. The record does not show a response from the Veteran regarding that matter. In January 2018 and August 2020, the Board remanded the case for further development. Entitlement to service connection for a back disability. Upon review of the evidence of record, the Board finds that the appeal must be remanded one more time for the obtainment of a clarification opinion. In August 2020 the Board remanded the issue for a new etiology opinion. At the time, the Board noted that the March 2018 VA examiner opined that the Veteran’s lumbar spine disorder was less likely than not proximately due to or aggravated beyond its natural progression by the service connected right knee disability. Medical literature did not support arthritis in one joint causing arthritis in another joint. The examiner explained that in this case, he experienced back pain twenty-seven years after he was separated from service. Instead, the lumbar spine arthritis was likely due to the normal aging process and obesity. The Board found the opinion to be inadequate because it lacked an adequate rationale and because the VA examiner failed to show adequate consideration of the evidence of record. It was noted that the VA examiner failed to consider the Veteran’s contention that his lumbar spine disorder is due to or aggravated by an altered gait. Alternatively, he has fallen due to his right knee disability and contends that it has also caused injury to his back. It was noted that December 2017 and April 2019 VA examination for the knees indicate that he has flare-ups that cause him to fall. It was also noted that the Veteran was diagnosed with both lumbosacral strain and degenerative arthritis of the spine at the March 2018VA examination, but the VA examiner’s opinion only addressed his degenerative arthritis of the spine. A new opinion was requested. In a September 2020 VA medical opinion, the examiner opined that the Veteran’s diagnosed lumbar strain and degenerative arthritis were less likely than not aggravated by the service-connected right and left knee disabilities. In so opining, the examiner noted that although there could potentially be temporary increase in his back pain (exacerbation) possibly from altered gait (if he walks long distance with altered gait) or with knee flare-up ups or related falls, however, there are no evidence of fracture of injury on imaging (such as fracture) suggestive of a fall related injury. Furthermore, the increase in pain during such period of altered gait or falls (if fall occurs) is expected to be temporary and not result in permanent aggravation beyond the natural progression of his lumbar strain and DJD/OA of the lumbar spine, because the natural history of these two conditions is progression over time. The Board finds the opinion to be inadequate. Indeed, the examiner seems to suggest that because the disability was to ultimately progress, aggravation is not possible. No explanation is given as to while a disability may naturally progress over time, it is not impossible for that progression to be hastened by another disability or the effects of those other disabilities. Moreover, it appears the examiner has dismissed the Veteran’s assertions of falls. Indeed, the parenthetical of “(if fall occur)” implies the examiner does not fully accept the Veteran’s competent assertions that he has fallen due to his service connected knees. Finally, the examiner appears to state that aggravation can only be shown by recorded injuries and gives a fracture as an example. The examiner does not explain why increased pain or a soft tissue injury which may not be shown by x-ray evidence cannot be considered aggravation. Given the above, the Board finds that a new opinion is needed. This matter is REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician, different than the one who provided the September 2020 opinion, to determine whether a current lumber spine disorder is secondarily related to the service-connected right knee disability. An in-person examination is not required unless deemed necessary by the clinician. The clinician is to review the virtual file, including a copy of this Remand. The clinician is to address the following: a) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed lumbar spine disorder, to include lumbosacral strain and degenerative arthritis, was caused by the service-connected right or left knee disabilities, to include due to an altered gait/favoring one side or due to falling during knee flare-ups. Please provide an opinion for each diagnosis or ensure that both are addressed in the response. b) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed lumbar spine disorder, to include lumbosacral strain and degenerative arthritis, has been aggravated (i.e., worsened beyond the normal progression of that disease) by the service- connected right knee disability, to include due to an altered gait/favoring one side or due to falling during knee flare-ups(see December 2017 and April 2019VA examination reports regarding the knees). A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. If upon completion of the above the matter remains denied, the appeal should be returned to the Board after compliance with appellate procedure. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Osegueda, 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.