Citation Nr: 21015143 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-57 571 DATE: March 16, 2021 REMANDED Entitlement to a disability rating exceeding 10 percent for a lumbar spine disability is remanded. Entitlement to a left knee disability to include as secondary to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1999 to May 2002 and from January 2006 to October 2006 including service in Iraq. This appeal comes to the Board of Veterans’ Appeals (Board) from an April 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a December 2020 hearing. At the hearing, the Veteran and his representative indicated that there are outstanding relevant treatment records including records from Advantage Chiropractic. They also indicated that the Veteran believes his last VA examination of the lumbar spine in January 2020 was inadequate and noted it was conducted in the context of a claim for service connection for fibromyalgia, which the RO granted in a February 2020 rating decision. The Board observes that the VA examinations of record do not clearly explain which symptoms affecting the Veteran’s back are attributable to the fibromyalgia rather than the other lumbar spine disabilities to the extent that distinction is possible. The AOJ did not consider the additional pertinent evidence including the January 2020 VA examinations in the first instance in the context of the Veteran’s lumbar spine and knee claims, and the Board observes that rating criteria pertinent to the Veteran’s lumbar spine has changed effective February 7, 2021. See, e.g., Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). The Veteran indicated at the hearing that he is willing to attend an additional VA examination for the purpose of clarifying the nature and severity of his disabilities under the applicable rating criteria. After obtaining all identified outstanding relevant records, the Agency of Original Jurisdiction (AOJ) should afford the Veteran a current examination of his lumbar spine disability and ensure the examiner’s opinion identifies the functional limitations of the Veteran’s lumbar spine distinct from fibromyalgia (to the extent possible) under both the older rating criteria and the revised criteria to the extent that it may support the assignment of a higher disability rating. Thereafter, the AOJ should readjudicate the claim considering the totality of the evidence. The Veteran’s November 2016 Appeal to Board of Veterans’ Appeals indicates the Veteran believed his left knee pain was either caused by his service-connected disabilities or warrants service connection as an undiagnosed symptom associated with his Persian Gulf service. The Veteran also noted at the Board hearing that he believes his left knee disability is aggravated by his service-connected lumbar spine disability. On remand, the AOJ should afford the Veteran an examination of his left knee disabilities to determine whether the Veteran’s left knee disabilities have been caused by his military service to include as secondary to his service-connected disabilities. The AOJ should ensure that the opinions address the Veteran’s claims based on Gulf War service and aggravation. See Ward v. Wilkie, 31 Vet. App. 233 (2019) (noting the criteria for secondary service connection does not include a requirement that the evidence demonstrates permanent aggravation and that any incremental increase in disability may suffice); Stewart v. Wilkie, 30 Vet. App. 383, 389 (2018) (clarifying that under 38 C.F.R. § 3.317, an illness is a MUCMI where either etiology or pathophysiology of the illness is inconclusive). The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records to include records from Advantage Chiropractic. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran’s claims file. 2. After associating all outstanding relevant records with the Veteran’s claims file, the AOJ should schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The Board notes that the pertinent rating criteria for the lumbar spine has changed effective February 7, 2021. The AOJ should ensure that the examiner’s opinion addresses not only the older rating criteria but also the revised criteria to the extent that it may support the assignment of higher disability ratings. To the extent possible, the AOJ should also ensure that the examiner’s opinion specifies which of the Veteran’s functional limitations of the back are caused by his service-connected fibromyalgia separate from the other service-connected lumbar spine disabilities. 3. After associating all outstanding records with the Veteran’s claims file including the additional examination of the Veteran’s lumbar spine disability, the AOJ should afford the Veteran an examination with an appropriate examiner of the Veteran’s left knee disability. The AOJ should provide the examiner with a complete copy of the claims file to include this remand order. The AOJ should ensure that the examiner follows these directives: (a.) The VA knee examiner should identify all current disabilities associated with the Veteran’s left knee to include any functional loss due to the Veteran’s reports of symptoms including pain and instability even if the examiner cannot attribute the symptoms to a specific diagnosis. To the extent possible, the examiner should specify whether any limitations of the left knee are manifestations of the Veteran’s service-connected fibromyalgia. (b.) For each current disability identified, the examiner should opine whether the disability was at least as likely as not (50 percent or greater probability) caused by the Veteran’s military service to include his Gulf War service in Iraq. The examiner should explain why or why not. (c.) For each current disability identified, the examiner should opine whether the disability was at least as likely as not caused by or worsened beyond normal progression (aggravated temporarily or permanently) by the Veteran’s service-connected disabilities to include his disabilities of the spine, achilles tendons (ankles), and fibromyalgia. For example, the examiner should address any evidence that the service-connected disabilities cause an alteration of the Veteran’s biomechanics (e.g. an altered gait or weight bearing) that placed increased stress on the left knee resulting in an additional functional limitation of the left knee. See, e.g., the Veteran’s June 2016 testimony before a Decision Review Officer. (d.) In regard to all symptoms affecting the Veteran’s left knee, the VA knee examiner should opine as to whether the etiology and the pathophysiology of the symptoms is partially understood. If either the etiology or pathophysiology is inconclusive, the examiner should state so. These opinions must be based on the Veteran’s individual circumstances rather than the illnesses as they are understood in the general public. See Stewart v. Wilkie, 30 Vet. App. 383, 389 (2018) (clarifying that under 38 C.F.R. § 3.317, an illness is a MUCMI where either etiology or pathophysiology of the illness is inconclusive). (e.) If the examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. After completing the above action and any other necessary development, the claim must be readjudicated. If a claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representatives. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Duffy, 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.