Citation Nr: 21027693 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-14 801 DATE: May 6, 2021 ORDER Service connection for degenerative arthritis and scoliosis of the lumbar spine, as secondary to service-connected right knee condition, is granted. REMANDED A rating in excess of 10 percent for right knee anterior cruciate ligament (ACL) and medial and lateral meniscus repair with degenerative joint disease (DJD). FINDING OF FACT The Veteran's back condition was caused by his service-connected right knee condition. CONCLUSION OF LAW The criteria for service connection for degenerative arthritis and scoliosis of the lumbar spine, as secondary to a right knee condition, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from October 1991 to August 1998, with additional service in the Naval Reserve. The claim is on appeal from a May 2015 rating decision. In July 2019, the Veteran testified at a Board hearing. The claim was last before the Board in July 2019. At that time, the Board reopened the claim of service connection for a back condition and remanded the claim, and a claim for a rating in excess for 10 percent for right knee ACL and medial and lateral meniscus repair with DJD, for further development. Service connection for a back condition. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Analysis The Veteran contends he suffers from back pain and a thoracolumbar spine condition as a result of his service-connected right knee condition. Private medical records include an October 2017 medical opinion, providing that the Veteran was under his care since October 2016 for spine-related conditions. The private physician stated it is certainly plausible that his altered gait cycle secondary to the knee issues concurrently affected his thoracolumbar pain symptoms. Further, the pathology noted for the thoracic spine likely concurrently causes undue gait stress on the already affected right knee. Another records from March 2017 provides the Veteran saw a neurosurgeon many years ago, who claimed his back was most likely coming from his knee pain and changes in gait from the injury and subsequent knee surgery in 2002. After the remand, the Veteran submitted additional evidence. A February 2021 private orthopedic surgeon medical opinion provides it is at least as likely as not that the Veteran's present thoracolumbar condition is secondary to various injuries sustained while on active duty. Specifically, it is at least as likely as not that the Veteran's thoracolumbar condition is the direct result of injuries first incurred to the right knee in 1997 while on active duty and subsequently reinjured in 2002 while on active duty in the National Reserves. The Veteran has a condition known as "chronic mechanical low back syndrome" and it is overwhelmingly the greatest cause of spinal disabilities in military personnel. The private orthopedic surgeon also provided articles upon which he based his reasoning. As rationale, the surgeon provided the Veteran's low back pain is caused by exposure to chronic antalgic gait caused by his painful right knee. The initial injury involving a complete tear of his right anterior cruciate ligament occurred in 1997 and he began limping at that time. Following the 2002 reinjury of his right knee, his limp started to increase. There was also instability associated with the unsuccessful ACL graph reconstruction. Due to excessive vertical positioning of graft, it was not in proper alignment to provide sufficient stability when the Veteran had his full weight on his lower right extremity. The private surgeon also addressed a December 2019 VA medical opinion that was provided by a physician's assistant on remand. Noting that, as an orthopedic surgeon, he strongly disagrees because stating that the mild scoliosis curve is caused by the Veteran's back pain shows lack of orthopedic knowledge, not based on studies or principles. It further shows an unfamiliarity with the relationship between chronic unbalanced gait and well-known relationship to lumbar disorders. Post-service medical records also include a February 2021 primary care note providing the Veteran reported his thoracic back pain onset was after the right knee reconstruction surgery. He has been seen by a doctor, tried physical therapy, and been given NSAIDs and hydrocodone/apap. Further, he saw a neurologist in 2008-2009 who told him that the back pain was a result of his right knee/limping. Previously, an April 2015 VA examination was afforded the Veteran. The examiner opined the Veteran's back condition is less likely than not proximately due to or the result of the Veteran's service-connected right knee. As rationale, the examiner provided that it is a separate condition from his right knee s/p ACL medial meniscus and lateral meniscus with DJD. Further, per a 12/2010 orthopedic doctor opinion, the mild scoliosis is likely a congenital condition and the true cause is likely multifactorial from wear and tear of low energy injuries as seen in certain physical type occupations. Upon remand, the previously mentioned December 2019 VA examination was afforded to the Veteran. During the examination, the Veteran reported back pain associated with limiting due to his leg issue. He also stated he never had back issues prior to his knee issues. He had also been treated with therapy in the past, including facet and epidural injections. The examiner provided that the Veteran has a diagnosis of scoliosis confirmed on lumbar and thoracic x-rays. However, this is a congenital condition, not secondary to an injury or overuse from a lower limb/knee. While the examiner did not provide an adequate opinion, the Board finds the February 2021 private medical opinion persuasive as to secondary nexus. The Board finds the private medical opinions are the most persuasive evidence, as they are based on an accurate medical history of the Veteran, consideration of medical literature/knowledge, and are coupled with a comprehensive explanation to include addressing the negative medical opinion provided by the December 2019 VA examiner. When reasonable doubt is resolved in the Veteran's favor, the Board finds that the Veteran's back condition is caused by his service-connected right knee condition. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for degenerative arthritis and scoliosis is warranted on a secondary basis. REASONS FOR REMAND A rating in excess of 10 percent for right knee ACL and medial and lateral meniscus repair with DJD. The Veteran maintains he is entitled to a higher rating for his service-connected right knee condition. He testified that he has been informed that he will likely need a knee replacement and that his knee limitations have impacted every aspect of his life. A February 2017 VA examination was afforded the Veteran. While it was noted the Veteran exhibited pain on both flexion and extension, pain with weight bearing, and pain causing functional loss, along with disturbance of locomotion, interference sitting and standing, and normal use of a brace or cane, the examination did not address range of motion in both passive and active motion, and in weightbearing and non-weightbearing circumstances. Upon the Board's remand, the Veteran was afforded a December 2019 VA examination. The examiner again found pain on both flexion and extension, pain on weightbearing, disturbance of locomotion, interference with sitting and standing, and regular use of a wheelchair and crutches. Although the Veteran was provided an additional VA examination and medical opinion upon the Board's remand, the opinion did not provide the requisite information of testing on passive and active range of motion and on weight-bearing and nonweight-bearing circumstances. Accordingly, remand is warranted at this time such that a proper medical examination and opinion may be obtained. Stegall v. West, 11 Vet. App. 268 (1998). In light of the remand, updated VA treatment records should be obtained. The matter is REMANDED for the following action: 1. Obtain outstanding VA treatment records dated since March 2021. 2. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an orthopedic specialist for the knee condition. The examiner should first ascertain the current severity of his service-connected right knee disability. The examiner should report: (a) ROM findings in degrees, on both active and passive ROM testing, in weightbearing and non-weightbearing circumstances, in the examination report. (Continued on the next page) (b) If there are flare-ups, but the examination is not conducted during the flare-up, the examiner should estimate the functional impairment of the flare-up in terms of degrees lost from ROM. If such cannot be estimated, then the examiner should explain why. A complete rationale or explanation should be provided for any opinions reached. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Becton, 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.