Citation Nr: 21023570 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-00 238A DATE: April 21, 2021 ORDER Entitlement to service connection for a low back condition is granted. REMANDED Entitlement to a total disability rating on the basis of individual unemployability as due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The evidence is at least in equipoise as to the question of whether the low back condition was aggravated by the service-connected left knee condition. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310; Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1981 to June 1986. These matters were last before the Board in October 2020, whereupon they were remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. Following the issuance of a February 2021 supplemental statement of the case continuing the denial of service connection as well as TDIU, the case was returned to the Board for its adjudication. As a reminder, the Veteran testified at a January 2020 videoconference hearing before the undersigned Veterans Law Judge. Entitlement to Service Connection for a Low Back Condition Upon consideration of the record, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s low back condition is secondary to her service-connected left knee condition. Secondary service connection is permitted based on aggravation, such that compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). Consequently, there exist two potential theories of entitlement to secondary service connection namely, causation under § 3.310(a) and aggravation under § 3.310(b). The Veteran was afforded a VA back examination in October 2013, during which she reported that she did not experience any low back symptomatology in service, and only began to experience such symptoms in 2009 and 2010. According to the Veteran, her back pain was associated with her compensating for her left knee condition by putting more weight on her right leg. After an in-person evaluation and a review of the claims file, the examiner set forth a diagnosis of degenerative disc disease. The examiner then opined that it was less likely than not that the low back condition was incurred in or otherwise attributable to service. However, the examiner offered no rationale in support of that opinion. Pursuant to the Board’s October 2020 remand instructions, the claims file was evaluated by a new VA medical professional in November 2020 in order to elicit an addendum opinion as to the likely etiology of the low back condition. After reviewing the claims file, to include the prior October 2013 examination, the VA examiner opined that it was less likely than not that the low back condition was incurred in or otherwise attributable to service. In support thereof, the examiner acknowledged the history of complaints of and treatment for low back pain in service, but found these to be acute in nature only as the Veteran was never diagnosed with a chronic condition in service and did not have such a diagnosis on the separation examination. Furthermore, the examiner relied on the lack of treatment for a low back condition for over 20 years following service in determining that there was no chronicity of care from service to the present day. In addition, the November 2020 examiner opined that it was less likely than not that the low back condition was proximately caused by a service-connected disability, to specifically include the left knee condition. The examiner referred to the lack of medical literature finding that there is a relationship between arthritis in one joint and the development of arthritis in another joint. However, the examiner then proceeded to state that it was at least as likely as not that the low back condition was aggravated by the left knee condition, and referred to an extensive listing of medical literature for support of the determination that the Veteran’s worsening antalgic gait and continued use of a cane would aggravate an existing lumbar spine condition and/or low back pain. The examiner also noted that the Veteran’s low back pain had worsened in severity since it first arose in 2010, further supporting the conclusion that the low back condition had been aggravated by the left knee condition after it initially manifested. Without reviewing the rest of the pertinent evidence of record, the Board will rely on this positive etiology opinion in finding that the evidence is at least in equipoise as to the question of whether the low back condition has been aggravated by the left knee condition. Specifically, the Board notes that the only other etiology opinion of record, that is, the October 2013 VA examiner opinion, is wholly unsupported by a rationale, which greatly diminishes its probative value. Sklar v. Brown, 5 Vet. App. 140 (1993). By contrast, the November 2020 examiner supported her conclusions by referring to medical literature and considering the entirety of the Veteran’s medical history, which reinforces the probative value of her opinion. Ultimately, there is no objective medical evidence which tends to discount the November 2020 examiner’s opinion. Consequently, service connection is warranted for a low back condition. Allen, supra. REASONS FOR REMAND Entitlement to TDIU is remanded. With the Board’s grant of service connection for a low back condition, the issue of entitlement to TDIU cannot be adjudicated presently, as the service-connected low back condition must be assigned a disability rating prior to determining whether the Veteran fulfills the criteria for TDIU on a schedular basis. Accordingly, the case is REMANDED for the following action: After issuing a rating decision assigning a disability evaluation for the service-connected low back condition, and any other development deemed necessary, readjudicate the Veteran’s TDIU claim based on the entirety of the evidence. If the benefit sought on appeal is not granted, she and her representative should be provided with a supplemental statement of the case. Allow an appropriate period of time for response. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Collins, 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.