Citation Nr: 21023597 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-23 162 DATE: April 21, 2021 ORDER Entitlement to a rating in excess of 30 percent for a right knee disability, status post total knee replacement is denied. REMANDED Entitlement to service connection for a back disability, including L3-L4 paracentral foraminal annual tear (claimed as a lumbar spine disorder) is remanded. FINDING OF FACT The Veteran’s right knee disability, status post total knee replacement was not manifested by chronic residuals consisting of severe painful motion or weakness in the affected extremity. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for a right knee disability, status post total knee replacement have not been met. 38 U.S.C. §§ 1155, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code 5055 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had periods of active duty service from August 1979 to December 1979, November 1980 to November 1983, and January 2004 to February 2005. The Board notes that the Veteran was previously represented by attorney Robert Chisholm, as reflected in an October 2017 VA Form 21-22a (Appointment of Individual as Claimant’s Representative). However, in October 2020, both the Veteran and his attorney revoked this representation; and there is no evidence that the Veteran has appointed any other organization or individual as his representative. Hence, the Board has recognized the Veteran as proceeding pro se in this appeal. This appeal has also been advanced on the Board’s docket, pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). The Board remanded this matter in March 2020. Entitlement to a rating in excess of 30 percent for a right knee disability, status post total knee replacement Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155 (2012). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2020). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. §§ 3.102, 4.3 (2020). The Veteran’s right knee disability is rated as 30 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5055. Under Diagnostic Code 5055, 30 percent is warranted when the Veteran shows signs of intermediate degrees of residual weakness, pain or limitation of motion and is rated analogous to Diagnostic Codes 5256, 5261, or 5262. A 60 percent rating is warranted when the Veteran suffers from chronic residuals consisting of severe painful motion or weakness in the affected extremity. A rating between 30 and 60 percent may be granted based upon the analogous ratings of the aforementioned codes. Regarding the right knee, the evidence does not overall show that the Veteran suffers from chronic residuals consisting of severe painful motion or weakness in the affected extremity to warrant a 60 percent rating. The Board notes the prior January 2019 VA examination was found to be inadequate because full range of motion testing pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017), were not included in the examination. However, despite considering some limited range of motion, the examiner found that the Veteran had intermediate degrees of residual weakness, pain, or limitation of motion. At the February 2021 VA examination, range of motion was found to be normal and there were no flare-ups or functional loss. The Veteran was able to perform repetitive-use testing with at least 3 repetitions. There was no additional loss of function or range of motion after 3 repetitions. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner determined that there were no residuals. Additional treatment records report pain and clicking, but there is no indication that the Veteran’s residuals are chronic consisting of severe painful motion or weakness. The Board has considered the Veteran’s lay statements. The Veteran is competent to report symptoms. However, the overall evidence of record is based on review by medical examiners. This evidence is highly probative and does not show that the Veteran suffers from severe symptoms associated with his right knee disability. Accordingly, the Veteran’s entitlement to an increased rating above 30 percent for his right knee disability, status post total knee replacement is denied. 38 U.S.C. § 5107 (b) (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Entitlement to service connection for a back disability, including L3-L4 paracentral foraminal annual tear (claimed as a lumbar spine disorder) is remanded. Though the Board regrets the additional delay, remand is required for an adequate VA opinion. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was provided with a VA examination in February 2021. The examiner determined that the Veteran’s lumbar disorders were less likely than not related to his active duty service from August 1979 to December 1979, November 1980 to November 1983, or August 1984 after a 15-foot jump. Outside of the paracentral/ foraminal annular tear and lumbar degenerative disc disease (DDD) the examiner dismissed all other diagnoses of record as there was no evidence within the x-rays, MRIs, and SPECT studies to support such diagnoses. The examiner found that the Veteran’s confirmed diagnoses of annular tear at the L3-L4 and lumbar DDD were less likely than not related to service as the onset of these conditions in 2012 and 2014 respectively indicated that they were more related to aging than in-service incidents. In a separate February 2021 addendum opinion, the examiner marked on the examination that the Veteran’s condition clearly and unmistakably preexisted service but provided a rationale that determined that the Veteran’s condition did not clearly and unmistakably preexist service as the Veteran was only treated once in August 1984 for lumbar issues. The examiner emphasized that this was the only reported case within the STRs prior to reentry into service in 2004. It was also noted that the Veteran’s separation examinations were silent for back complaints. The examiner found that it was not clear whether this one instance of injury could have led to subsequent back issues as there were no x-rays taken at the time. The examiner also noted as there was a 10-year gap between the Veteran’s periods of service, it was possible that the Veteran may have re-injured his back while a civilian. The examiner then determined that the Veteran’s condition was not permanently and unmistakably aggravated beyond its natural progression as the Veteran did not show recurrent treatment or worsening symptoms. The examiner noted that progression of symptoms occurred after 2006 and that most activity occurred between 2012 and 2019 when the majority of MRIs and x-rays were performed. The examiner found that as many of the Veteran’s orthopedic issues occurred many decades after service, they were more likely due to wear and tear and the natural aging process. Therefore, the examiner determined that the Veteran’s condition was less likely than not related to service. The Board notes that the VA opinion regarding nexus between the Veteran’s lumbar conditions and service from August 1979 to December 1979, November 1980 to November 1983, and August 1984 after a 15-foot jump are thorough and well-reasoned. The addendum opinion, however, is inadequate for VA purposes. First, the Board finds the opinion inadequate as it is based upon an inaccurate factual premise. A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The examiner noted that the Veteran’s lumbar condition could not have preexisted his 2004 period of service as there was only one episode for a lumbar condition documented in the STRs on August 2, 1984. There is, however, evidence that the Veteran also sought treatment for a lumbar condition on August 6, 1984. The August 2, 1984 STR documented the Veteran’s back injury after running up hills while the August 6, 1984 STR noted that the Veteran had been having back pain for 10 days following a jump in training. As the examiner based much of his reasoning upon the inaccurate premise that the Veteran only sought treatment in service for an isolated incident, remand is required for a new VA opinion. Second, the Board also finds the February 2021 addendum to be inadequate as it is confusing and conflicting. The examiner marked that the Veteran’s lumbar condition preexisted service, then provided a rationale supporting the opposite conclusion. After explaining why the Veteran’s condition did not clearly and unmistakably preexist service, the examiner then provided an opinion finding that there was no evidence that the Veteran’s preexisting condition was aggravated beyond its natural progression. The examiner then ended the opinion by providing a direct service connection statement by finding that the Veteran’s condition was less likely than not related to the Veteran’s 2004 to 2005 service. The Board finds that the examiner utilized two separate standards in providing his opinion. As such, remand is required for clarification. Finally, the Board finds the opinion to be inadequate as the examiner did not address all pertinent medical evidence of record. The Board notes that the Veteran submitted private treatment records from 2006. These records noted spasms throughout the thoracic facet joint as well as tenderness in the right intercostal region and in the lumbar facet joints around L1-L2 and L2-L3. The Veteran reported a history of back issues in these treatment records and indicated past treatment with Toradol injections and oral medication. The Veteran stated that treatment through oral medications, heat and ice therapy, and analgesic patches and rubs had failed. The physician noted that there was evidence of spondylosis, a form of arthritis. These records indicated that the Veteran had a spine condition that manifested prior to November 2006. This may be evidence that the Veteran’s lumbar condition manifested within one year of discharge in February 2005. As such, remand is required for an opinion that addresses these private treatment records in determining the onset of the Veteran’s lumbar condition. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the electronic claims file. 2. Afford the Veteran a VA examination, by a qualified examiner who has not previously examined the Veteran or provided an opinion on this matter, to determine the etiology of all diagnosed thoracolumbar spine disabilities. The examiner must obtain from the Veteran and record in the examination report a complete history regarding the onset and continuity of symptoms. The examiner must also review the entire claims file. Following a complete review of the medical and lay evidence of record, the examiner is requested to provide the following information: (a) Identify all currently diagnosed disabilities, including, but not limited to, thoracic radiculopathy, thoracic and lumbar joint facet syndrome, myofascial pain, left paracentral/foraminal annual tear at L3-L4, and degenerative joint disease of the lumbar spine. (b) Arthritis, including spondylosis, is a presumptive condition under 3.309(a). Thus, the examiner must opine whether it at least as likely as not whether (1) degenerative changes of the back began during active service, (2) manifested within one year after discharge from service, or (3) whether the back pain that was noted during service is a continuity of the same symptomatology since service, causing current degenerative changes. The examiner must address the private treatment records from November 2006. (c) With regard to each diagnosis in (a), determine whether there is clear and unmistakable (obvious or manifest) evidence that the Veteran had a preexisting back disability prior to his reentry to active duty in January 2004. Why or why not? i. With regard to each diagnosis found to clearly and unmistakably preexist the Veteran’s reentry to active service in January 2004, is there clear and unmistakable evidence that the disability was not aggravated (meaning not permanently worsened) beyond its natural progression as a result of any period of active duty service. Why or why not? ii. With regard to each diagnosis found not to clearly and unmistakably preexist the Veteran’s reentry to active service in January 2004, determine whether it is at least as likely as not (50 percent probability or higher) that the disability began during or is related to the Veteran’s service from January 2004 to February 2005, including the February 2004 treatment for low back pain. Why or why not? A complete rationale for EACH opinion must be provided. The examiner must consider and discuss the Veteran’s lay statements. If the examiner is unable to formulate any opinion without resorting to speculation, he or she must indicate why this is so. 3. The Veteran is informed that it is his responsibility to report for any scheduled examinations and to cooperate in the development of the claims and that the consequences for failure to report for any VA examination without good cause may include denial of a claim. See 38C.F.R. §§3.158, 3.655. If the Veteran does not report for any examination, documentation showing he was properly notified of the examination must be associated with the record. Additionally, the medical professionals designated to provide the opinions in question must attempt to do so based on the evidence of record. 4. This case has been Advanced on the Docket. The AOJ must review the examination reports and opinions to ensure they are adequate and comply with the Board’s specific remand directives herein. If deficient in any manner, corrective action must be taken at once. 5. Then, the Veteran’s claim must be readjudicated. If any benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. Saudiee Brown Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board AK 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.