Citation Nr: 21010515 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 10-38 709 DATE: February 25, 2021 REMANDED Entitlement to service connection for a low back disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a right knee disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or housebound status for the periods prior to April 30, 2019 and since June 1, 2020 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1984 to March 1985. These matters are before the Board of Veterans’ Appeals (Board) on appeal from November 2008 and April 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In an August 2019 rating decision, the RO granted entitlement to SMC based on housebound status from April 30, 2019 through May 31, 2020. As this grant did not satisfy the appeal in full, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The Board has previously remanded these matters in October 2017, April 2020, and November 2020 for additional development. Unfortunately, as explained below, the Board is not satisfied that there was substantial compliance with its prior remand. Therefore, the claims must be remanded once again. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Entitlement to service connection for a low back disability and a right knee disability, to include as secondary to service-connected disabilities, are remanded. The Veteran contends that his current low back and right knee disabilities are secondary to his service-connected right lower leg and left knee disabilities. He specifically asserts that his service-connected disabilities cause him to walk with an altered gait, which has caused or aggravated his low back and right knee conditions. The Board notes that it has previously remanded these service connection claims three times in order to obtain adequate VA medical opinions addressing the matter of aggravation pursuant to El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). In El-Amin, the United States Court of Appeals for Veterans Claims (Court) held that a medical opinion regarding secondary service connection must address both causation and aggravation. The Court also indicated 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. Id. at 140. Most recently, VA medical opinions were obtained in November 2020. Upon review of the claims file, a VA examiner opined that the Veteran’s right knee and low back disabilities are less likely than not proximately due to or the result of his service-connected right lower leg and/or left knee disabilities. With regard to the claimed right knee disability, the VA examiner reasoned that “current medical literature does not support the contention that a pathology in one limb has any significant impact on the opposite limb unless the injury resulted in major muscle or nerve damage, partial or complete paralysis, or a shortening of the injured leg to result in a lurching type gait or Trendelenburg gait over an extended period of time. Pathology in the ipsilateral limb is unlikely due to the fact that less weight bearing occurs in the affected leg with limping.” The examiner instead related the Veteran’s right knee chondromalacia to the aging process and/or genetics. With regard to the low back disability, the VA examiner cited to a medical study finding that “clinical data [and] patient studies directly related to the incidence of back pain in the general population for individuals walking with a limp, are limited and inconclusive,” however, “it would also be necessary for the Trendelenburg gait pattern to have been severe and present for an extended period of time, probably years, to have any permanent effect on the spine.” The examiner then stated, without further explanation or rationale, that the Veteran does not have a Trendelenburg gait. The examiner related the Veteran’s low back disability, diagnosed as degenerative arthritis, to the aging process and/or genetics. Notwithstanding the fact that the VA examiner did not adequately address the Veteran’s well-documented antalgic gait with regard to causation, the examiner did not address, at all, whether his service-connected right leg and left knee disabilities could aggravate his currently-diagnosed right knee and low back disabilities. As previously stated, a medical opinion that fails to address whether a service-connected disability aggravates the claimed disability is inadequate to inform the Board on the issue of secondary service connection. See El-Amin, 26 Vet. App. at 140. In light of the above, the Board finds that the record still does not contain medical opinions that are sufficient to fairly decide the Veteran’s secondary service connection claims. Therefore, the claims must be remanded once again because the RO did not comply with the Board’s prior remand directive to obtain adequate medical opinions on the Veteran’s behalf. See Stegall, 11 Vet. App. at 268. On remand, addendum medical opinions must be obtained, if possible from a VA physician with expertise in orthopedics, that are adequate for the Board to make an informed decision on the Veteran’s claims. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). Entitlement to a TDIU and SMC based on the need for regular aid and attendance or housebound status are remanded. The matters of entitlement to a TDIU and entitlement to SMC based on the need for regular aid and attendance or housebound status are inextricably intertwined with the service connection claims being remanded. Thus, the adjudication of these claims must be deferred pending resolution of the pending claims. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: Obtain an addendum opinion from a qualified VA doctor (M.D.) (i.e. an orthopedist) who has not yet provided an opinion in this case. A VA examination should not be scheduled unless deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, to include a copy of this REMAND, and that review must be noted in the report. Thereafter, the examiner should provide a fully-articulated medical opinion addressing the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s right knee disability and/or low back disability was caused by his service-connected right lower leg and/or left knee disabilities? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s right knee disability and/or low back disability was aggravated by (increased in severity beyond its natural progression) his service-connected right lower leg and/or left knee disabilities? The examiner must provide separate opinions for questions (a) and (b). In addressing the matter of aggravation, the examiner should note that it is not required that the claimed disabilities are shown to be aggravated beyond natural progression “predominantly” by the right lower leg and/or left knee disabilities, but rather, whether there is any contributing degree of aggravation beyond natural progression by the service-connected disabilities. Additionally, a recent Court of Appeals for Veterans Claims decision held that aggravation under 38 C.F.R. § 3.310(b) does not require that there be “permanent” worsening of the nonservice-connected disability. Any increase in disability is sufficient. Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). It is imperative that the requested medical opinion fully address the Veteran’s contention that he walks with an altered gait due to his service-connected disabilities, which may have aggravated, or contributed to the development of, his claimed right knee and low back disabilities. The presence of an antalgic gait has been documented in the medical evidence since at least 1992. The examiner is advised that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner is advised that the Veteran’s lay contentions of record must be considered and weighed in making the determination as to whether a nexus exists between the claimed disabilities and military service. It should be noted that a lack of documented treatment for a claimed disability in service, while probative, cannot serve as the sole basis for a negative finding. The examiner must provide a complete rationale for any opinions offered, citing to the examiner’s own expertise, medical principals, and/or evidence in the Veteran’s record, when necessary, to support the conclusion reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. The Board reminds the examiner that failure to comply with the examination directives outlined herein will render the opinion(s) inadequate and will result in further remand of the Veteran’s claims. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Melissa Barbee, 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.