Citation Nr: 21023922 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 13-18 254 DATE: April 21, 2021 REMANDED Service connection for a left foot disability is remanded. Service connection for a left hip disability is remanded. A rating in excess of 10 percent prior to August 3, 2018, and 20 percent thereafter for lumbosacral strain with degenerative arthritis of the spine (low back disability) is remanded. Service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1968 to September 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2015, April 2018 and March 2019 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). The Veteran’s claims for service connection for a left knee, left foot and left hip disability and for increased ratings for a low back disability were previously before the Board, most recently in September 2019. At that time, the Board denied the claims. The Veteran appealed to the Court of Appeals of Veterans Claims (CAVC). Pursuant to a Joint Motion for Remand (JMR) entered into by the Veteran and VA, CAVC vacated the September 2019 Board decision and remanded the claims to the Board for further ation. Pursuant to the terms of the JMR, the August 2018 VA medical opinions for the Veteran’s left foot and left hip disabilities were inadequate because they did not address whether those disabilities were secondary to or aggravated by his service-connected low back disability. Accordingly, remand is warranted to obtain addendum VA opinions medical regarding the Veteran’s left foot and left hip disabilities. Also pursuant to the terms of the JMR, the August 2018 VA examination for the Veteran’s low back disability did not adequately address the severity of the Veteran’s low back disability immediately after repeated use over time. Accordingly, as noted in the JMR, a new VA examination was warranted for the Veteran’s low back disability. The parties also agreed in the JMR that the Board failed to adequately address whether the Veteran’s left knee disability was related to his service-connected right knee disability. Following review of the record, the Board finds that the claim for left knee disability requires remand for an adequate VA opinion addressing secondary service connection. Although the October 2015 VA examiner concluded that the Veteran’s left knee disability was not related to his right knee, the examiner did not address whether the left knee disability was aggravated by his service-connected right knee condition. The matters are REMANDED for the following action: 1. Obtain any relevant outstanding treatment records. 2. After the development in item 1 has been completed to the extent possible, obtain a VA medical opinion addressing the Veteran’s left foot disability. The entire claims file and this remand should be made available to and be reviewed by the examiner in conjunction with this request. If the examiner determines that a physical examination is warranted one should be conducted. The examiner is asked to opine as to: (a.) Whether it is at least as likely as not that the Veterans’ left foot disability was caused by his service-connected low back disability? (b.) If not caused by the low back disability, is it at least as likely as not that the Veteran’s left foot disability has been worsened beyond normal progression by his service-connected low back disability? Please explain why or why not. In proffering this opinion, the examiner must determine whether the Veteran’s low back disability caused any incremental increase, even transient, in his left foot disability, regardless of permanence. (c.) If the examiner finds that the Veteran’s left foot disability has been worsened beyond normal progression (aggravated) by his service-connected low back disability, please attempt to quantify the degree of aggravation beyond the baseline level of the left foot disability that is attributable to the low back disability. In offering these opinions, the examiner should address the etiology and effect of the Veteran’s gait, and comment on whether additional testing or research could help resolve the claim. 3. After the development in item 1 has been completed to the extent possible, obtain a VA opinion addressing the nature and etiology of the Veteran’s left hip disability. The entire claims file and this remand should be made available to and be reviewed by the examiner in conjunction with this request. If the examiner determines that a physical examination is warranted one should be conducted. The examiner is requested to opine as to: (a.) Whether it is at least as likely as not that the Veteran’s left hip disability was caused by his service-connected low back disability? (b.) If not caused by the low back disability, is it at least as likely as not that the Veteran’s left hip disability has been worsened beyond normal progression by his service-connected low back disability? Please explain why or why not. In proffering this opinion, the examiner must determine whether the Veteran’s low back disability caused any incremental increase, even transient, in his left hip disability, regardless of permanence. (c.) If the examiner finds that the Veteran’s left hip disability has been worsened beyond normal progression (aggravated) by his service-connected low back disability, please attempt to quantify the degree of aggravation beyond the baseline level of the left hip disability that is attributable to the low back disability. 4. After completing the development in item 1, schedule the Veteran for a VA examination with an appropriate clinician to evaluate the Veteran’s low-back disability. The examiner must be provided with and review the entire claims file, to include a copy of this remand. All appropriate tests and studies should be conducted. The examiner should provide opinions on the current nature and severity of the Veteran’s low back disability and a retrospective opinion (based on file review). (a.) The examiner must test the Veteran’s active motion, passive motion and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency and duration of flare-ups, as well as the functional effects of repeated use over time. If it is not possible to provide a specific measurement, the examiner should provide an estimate, it at all possible, of the additional impairment due to flare-ups and repeated use over time based on the other evidence of record and the Veteran’s statements. Please note that the Board cannot accept a rationale that the Veteran is not observed during a flareup or after repeated use over time to explain why the range of motion values cannot be provided. (b.) The examiner should also state whether it is at least as likely as not (50 percent probability or greater) that repeated use over time results in range of motion additionally limited to forward flexion greater than 30 degrees but not greater than 60 degrees or combined range of motion not greater than 120 degrees for the period prior to August 3, 2018 or forward flexion 30 degrees or less for the period after August 3, 2018 (the measurements required for the next higher ratings during those periods). Please explain why or why not. Please estimate functional loss that occurred as a result of repeated use over time, using information procured from relevant sources of record in addition to examination reports, including lay statements from the Veteran. 5. After the development in item 1 has been completed to the extent possible, obtain a VA opinion addressing the nature and etiology of the Veteran’s left knee disability. The entire claims file and this remand should be made available to an be reviewed by the clinicians in conjunction with this request. If the examiner determines that a physical examination is warranted one should be conducted. The examiner is requested to opine as to: (a.) Whether it is at least as likely as not that the Veteran’s left knee disability was caused by his service-connected right knee disability? (b.) If not caused by the right knee disability, is it at least as likely as not that the Veteran’s left knee disability has been worsened beyond normal progression by his service-connected right knee disability? Please explain why or why not. In proffering this opinion, the examiner must determine whether the Veteran’s right knee disability caused any incremental increase, even transient, in his left knee disability, regardless of permanence. (c.) If the examiner finds that the Veteran’s left knee disability has been worsened beyond normal progression (aggravated) by his service-connected right knee disability, please attempt to quantify the degree of aggravation beyond the baseline level of the left knee disability that is attributable to the right knee disability. A complete rationale for the examiners’ opinions should be provided, citing to specific evidence of record and any relevant medical literature, as necessary. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to provide an opinion. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the examiner. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, 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.