Citation Nr: 21025717 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-33 617 DATE: April 28, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to an increased evaluation in excess of 10 percent for the Veteran’s service-connected left knee disability, to include osteoarthritis status post chronic knee strain and fractured left patella, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) for service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served honorably in the U.S. Air Force from September 1983 to April 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran’s Form 9 indicates that he did not request a Board hearing. In October 2018, the Board remanded this appeal for further development, including scheduling the Veteran for additional VA examinations to evaluate his low back and left knee conditions. However, for the reasons set forth below, to the extent that the August 2019 VA examination reports failed to include the necessary discussions, substantial compliance with the Board’s October 2018 Remand directives has not occurred; accordingly, the Veteran’s service connection claim for a low back disability must once again be remanded for further development. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 1. Entitlement to service connection for a low back disability is remanded. Unfortunately, the Veteran’s service connection claim for a low back disability must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. As stated above, the Board remanded the Veteran’s low back claim in December 2018 in order to obtain an additional VA examination report addressing the Veteran’s low back condition. In August 2019, the directed VA examination report was obtained, which declined to find a causal link between the Veteran’s active military service and his current low back condition based upon the following rationale: The Veteran has onset of chronic low back pain due to chronic lumbosacral strain in 1993 and later the finding of degenerative disc disease of the lumbar spine most prominently at L4-L5 with bilateral radiculopthy [sic] according to the medical records in 4/2005. There is no recording of any low back pain or lumbar spine injury while on active duty according to the STRs and Vetern’s [sic] report. The chronic low back pain did not start until many years after the Veteran left active duty. . . . Although there is evidence of a current condition, the service treatment records do not contain complaints, treatment, or diagnosis for this condition and the evidence does not show an event, disease or injury in service. I was unable to find a link between the medical condition and military service based on the available information in the medical record. Based on this examiner’s review of current peer-reviewed literature along with a Cochrane Database Systemic Review, this examiner could not find any literature that reports any objective evidence that lumbar strain leads to lumbar disc herniation or lumbar degenerative disc disease. Degenerative changes of the joint or osteoarthritis is a common condition and is often a consequence of aging. Advanced age is one of the strongest risk factors associated with osteoarthritis. The National Health and Nutrition Examination Survey found the prevalence of this disease to be less than 0.1 percent in those aged 25 to 34 years old versus a rate of over 80 percent in people over age 55. As people age as people age, the following occur: “The cartilage that lines the joints tends to thin.” The surfaces of a joint may not slide over each other as well as they used to.” The joint may be slightly more susceptible to injury. https://www.merckmanuals.com/home/bone,-joint,-and-muscle-disorders/joint-disorders/osteoarthritis-oa#v729722 Major Depressive disorder is a mental health condition. In review of the medical literature, this examiner could find to [sic] pathophysiological mechanism by which a mental health condition such as major depressive disorder could cause a musculoskeletal condition such as lumbar degenerative disc disease to develop. However, the August 2019 VA examination report failed to address the treatment notes contained in the Veteran’s STRs which in fact reflect the following relevant competent evidence relevant to his claimed low back condition: (1) a July 1985 treatment note indicating the Veteran’s in-service report of “back pain”; and (2) an August 1986 treatment note indicating the Veteran’s in-service emergency treatment for “back/neck spasms.” Accordingly, as the August 2019 VA examination report incorrectly states that there was no report of “any low back pain or lumbar spine injury while on active duty according to the STRs” an additional medical opinion to determine whether such disability is related to his active military service and thus entitled to service connection on any basis. See Stegall, 11 Vet. App. at 271. 2. Entitlement to an increased evaluation in excess of 10 percent for the Veteran’s service-connected left knee disability, to include osteoarthritis status post chronic knee strain and fractured left patella, is remanded. Unfortunately, the Veteran’s service connection claim for a left knee disability must also be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. In January 2010, the Veteran’s left knee disability was awarded service connection and assigned a 10 percent evaluation effective May 15, 2009; however, the Veteran contends that the current severity of his service-connected left knee disability warrants an increased evaluation in excess of 10 percent. In December 2013, the Veteran was afforded a VA knee examination which culminated in a report indicating objective evidence of the Veteran’s initial left knee flexion limited to 110 degrees and extension limited to 0 degrees; however, with painful motion, flexion was found to be limited to 115 degrees and extension limited to 15 degrees. In August 2019, the Veteran was afforded a second VA knee examination which culminated in a report indicating evidence of painful motion but omitting any reference to additional limitations of range of motion due to painful motion. VA regulations provide that painful motion is an important factor of disability, and facial expressions such as wincing exhibited in the presence of pressure on or manipulation of the affected joints should be carefully noted and definitely related to the affected joints. See 38 C.F.R. § 4.59. Actually painful, unstable, or malaligned joints due to healed injury are at the very least entitled to the minimum compensable rating for the affected joint. See id. Crepitation within the joint structures or the soft tissues, such as the tendons or ligaments, should be noted carefully as points of contact which are diseased, and flexion elicits such manifestations. See id. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weightbearing and, if possible, with the range of the opposite undamaged joint. See id. When adjudicating disabilities evaluated based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 pertaining to functional impairment must be applied, and examinations must assess whether the disability at issue manifested weakened movement, excess fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). Such inquiry should not be limited to muscles or nerves, and, if feasible, these determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. See id. In order to constitute functional loss, pain must affect some aspect of the normal working movements of the body, such as excursion, strength, speed, coordination and endurance. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Moreover, 38 C.F.R. § 4.40 does not require a separate rating for pain, but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997). Accordingly, the Board finds that an additional VA examination is necessary in order to determine whether the Veteran’s current left knee range of motion is further limited by painful motion and, consequently, whether it is entitled to an increased evaluation in excess of 10 percent. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). 3. Entitlement to a total disability rating based on individual unemployability (TDIU) for service-connected disabilities is remanded. Any decision regarding the Veteran’s service connection and increased rating claims being remanded herein may impact his claim for entitlement to a TDIU. Therefore, adjudication of the Veteran’s TDIU claim must be deferred until the inextricably intertwined issues are resolved or prepared for appellate consideration. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, these matters are REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records and associate all such records with the electronic claims file. The AOJ should undertake the appropriate efforts to obtain and associate with the claims file any outstanding service treatment records, as well as any relevant and outstanding VA or private treatment records. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 2. After the above development and any additionally indicated development has been completed, schedule the Veteran for a VA examination with an appropriate clinician, different from the August 2019 examiner, to determine the nature and etiology of the Veteran’s claimed low back disability. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s low back disability is due to or otherwise causally or etiologically related to his military service. The examiner must expressly address all relevant, competent lay and medical evidence of record, including but not limited to the following: (a) a July 1985 treatment note in the Veteran’s service treatment records indicating the Veteran’s in-service report of “back pain”; and (b) an August 1986 treatment note in the Veteran’s service treatment records indicating the Veteran’s in-service emergency treatment for “back/neck spasms.” The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. 3. After the above development and any additionally indicated development has been completed, schedule the Veteran for a VA examination with an appropriate clinician, different from the August 2019 examiner, to determine the current severity and manifestations of the Veteran’s claimed left knee disability. The examiner should provide a full description of the left knee disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address any reports of flareups. If the examination cannot reasonably be conducted during a flareup, the examiner must attempt to elicit information regarding the severity, frequency, duration, precipitating factors, and alleviating factors of any flareups, and should estimate the degree of functional loss and additional limitation of motion during such flares. The examiner must also test the Veteran’s active motion, passive motion, pain with weight-bearing, and pain without weight-bearing and must include this information in the examination report. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left knee disability alone and discuss the effect of the Veteran’s left knee disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flareups, symptoms, or functional impairment 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). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Marsdale 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.