Citation Nr: 21014941 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-32 832 DATE: March 16, 2021 REMANDED Entitlement to service connection for a back disability, to include as secondary to service-connected right knee disability, is remanded. Entitlement to a rating in excess of 10 percent for residuals of a right knee injury is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from September 1984 to April 1991. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from June 2014 and July 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan and the Evidence Intake Center in Newnan, Georgia. In September 2019, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. The issues on appeal were previously before the Board in February 2020, when they were remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. In January 2021, information was received which indicated that the Veteran is homeless. On that basis, the Board has advanced her appeal on the docket. 38 C.F.R. § 20.902(c). Although the Board regrets the additional delay, further development is necessary to ensure substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a back disability, to include as secondary to service-connected right knee disability, is remanded. The Veteran seeks to establish service connection for a low back disability. She stated in a November 2020 document that two incidents in service led to her problems. The first was when she fell while playing basketball, and the second was when she was moving boxes and her knee gave out, causing her to fall backwards. She also contends that her back condition is secondary to her service-connected right knee disability. In its February 2020 remand, the Board directed the AOJ to obtain updated VA treatment records and to afford the Veteran a VA examination regarding her back disability. The Veteran was afforded a VA examination in connection with her claim in July 2020. The examiner noted diagnoses of intervertebral disc syndrome (IVDS), “sciatic nerve,” and a herniated disc. The examiner noted the Veteran’s contention that she injured her back during service while playing basketball but offered a negative nexus opinion as to direct causation. The examiner reasoned that the Veteran’s mechanical low back pain secondary to a muscle sprain in service was acute only, that there was no evidence of chronicity of care, and that the claims file was silent for any treatment of a low back condition from discharge until 2008. The examiner also offered negative nexus opinions as to both the causation and aggravation prongs of secondary service connection. She reasoned that there was no clear evidence from a review of orthopedic literature to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb. She opined that the Veteran’s chronic back pain was therefore less likely than not related to the right knee injury that occurred in service. Regarding aggravation, the examiner reasoned that the Veteran did not have problems with or treatment for her back until 2008, 17 years after discharge, and that as a result, chronicity of the back condition could not be correlated to the knee injury that she had while in service. She further reasoned that the literature did not support the claim that the knee injury had contributed to the Veteran’s back condition based on information in the claims file. The Board finds the July 2020 VA examiner’s opinion regarding aggravation inadequate for two reasons. The first is that the opinion appears to focus on causation, rather than aggravation, in that the examiner focused on the gap between the Veteran’s service and when she first sought treatment. Second, while she stated that literature did not support that the knee disability contributed to the back disability, the examiner did not cite to any of that literature or offer any other rationale. Under the circumstances, another VA examination and/or opinion regarding secondary service connection is warranted. See Stegall, supra; Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board also notes that a November 2020 x-ray of the lumbar spine shows disc degeneration, facet arthropathy, and degenerative changes of the sacroiliac joints. Magnetic resonance imaging (MRI) of the lumbar spine of the same date shows areas of narrowing of the spinal canal and neural foramina. These objective imaging studies should also be taken into consideration by the new VA examiner. The Board also notes that the November 2020 imaging studies were performed by VA but appear to have been submitted by the Veteran. On remand, updated and complete copies of any VA treatment records should also be procured. See, e.g., Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). 2. Entitlement to a rating in excess of 10 percent for residuals of a right knee injury is remanded. The Veteran contends that her service-connected right knee disability warrants a rating in excess of 10 percent. In a November 2020 submission, she stated that she now uses both a walker and a scooter, and that she has to sit on the walker to do dishes and on the couch to vacuum. In its February 2020 remand, the Board directed the AOJ to obtain updated VA treatment records, to include a December 2019 Knee Disability Benefits Questionnaire (DBQ) which at that time was not present in the claims file. It further directed that if the December 2019 knee DBQ was not available or was inadequate for rating purposes, the AOJ should arrange for the Veteran to undergo a VA examination to assess the current severity of her right knee injury. The AOJ afforded the Veteran a new VA examination in early July 2020, but it did so before obtaining and associating with the claims file updated VA treatment records later that same month. The updated VA treatment records included a copy of an August 2019 x-ray of the right knee, a September 2019 VA treatment record of a right knee consultation, and a copy of the December 2019 Knee DBQ. Because the AOJ ordered the new VA examination before obtaining the updated records, the July 2020 VA examiner did not have the benefit of reviewing them. This error is also borne out by the July 2020 examination itself, inasmuch as while the examiner indicated that imaging was reviewed, she cited only an MRI from June 2015 and stated that x-rays on the day of the examination were not clinically indicated. She further indicated that there was no joint instability, even though the September 2019 knee consultation reflects a diagnosis of right knee instability. In light of the above, a new VA examination which takes into account all of the evidence of record is warranted. See Stegall, supra. The Board further finds that a new VA examination is warranted in light of the Veteran’s assertion of worsening (in that she now uses a scooter and has to sit to do dishes and to vacuum). Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination). The Board also notes that the Veteran is currently service-connected for residuals of a right knee injury, but not for arthritis in her right knee. She has been afforded VA examinations in connection with her claim in May 2014, June 2015, and July 2020, and as noted above, the file also contains a Knee DBQ from December 2019. The May 2014 VA examiner found that the Veteran’s diagnosis was right knee torn meniscus with arthropathy. Imaging of the knee at that time was normal with a history of injury and previous arthroscopic surgery. The June 2015 VA examiner found that the Veteran had both a meniscal tear and minimal degenerative joint disease in the right knee but opined that it was less likely than not that the Veteran’s right knee arthritis was related to the service-connected meniscal tear. In the December 2019 Knee DBQ, the provider noted that the Veteran had residuals of a right knee injury and used a cane or walker to ambulate, and further stated that she had multiple health conditions which contributed to the need to ambulate with the supportive devices. Finally, the July 2020 VA examiner noted diagnoses of both a right knee meniscal tear and degenerative arthritis but indicated that the residual symptoms due to the service-connected meniscal condition were that the Veteran continued to have pain. She further noted that while the Veteran used a walker, she did so due to her diagnosis of myasthenia gravis. The Board notes that the May 2014, June 2015, and July 2020 VA examiners did not clearly differentiate between symptoms attributable to the Veteran’s service-connected residuals of a right knee injury disability related to a meniscal condition and her non-service-connected right knee arthritis. The May 2014 and June 2015 examiners made no attempt to do so, and the July 2020 examiner did not do so clearly. Similarly, the provider who completed the December 2019 Knee DBQ made no attempt to differentiate the symptoms noted on examination. The Board notes that it is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). On remand, the new VA examiner should attempt to differentiate between the two conditions, if possible. Finally, the Board notes that an updated MRI of the right knee from November 2020 shows sequelae of remote injury, including a nonvisualized anterior cruciate ligament compatible with a chronic tear, noted as changes from her prior medial meniscectomy, as well as early tricompartmental osteoarthritis predominantly involving the patellofemoral compartment. On remand, the new VA examiner should consider this updated MRI. These matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed to the extent possible, arrange to provide the record on appeal to a VA clinician for purposes of assessing the etiology of the Veteran’s back disability. The examiner should review the record. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s back disability was a) caused or b) aggravated (i.e. worsened beyond natural progression) by her service-connected right knee disability, to include as a result of altered gait mechanics. In so doing, the examiner should consider the November 2020 x-ray and MRI of the Veteran’s lumbar spine. The need for an in-person and/or telephonic interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinion(s). A complete medical rationale for all opinions expressed must be provided. 3. Arrange to have the Veteran scheduled for a VA examination with an appropriate clinician to assess the current severity her service-connected right knee disability. The examiner should provide a full description of the Veteran’s associated functional impairments as they relate to the relevant rating criteria. In so doing, the examiner should take into consideration the November 2020 MRI of the right knee. To the extent feasible, the examiner should differentiate between the symptoms attributable to the Veteran’s service-connected residuals of right knee injury and her non-service-connected right knee arthritis, if possible, undertaking any testing deemed necessary (with the Veteran’s consent). If no such differentiation is possible, that should be noted. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and her representative should be issued a   supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, 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.