Citation Nr: 21030365 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-29 811 DATE: May 18, 2021 REMANDED Service connection for a back disability is remanded. Service connection for a left knee injury, including secondary to back disability, is remanded. Service connection for a right knee injury, including secondary to back disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1969 to March 1976. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied the Veteran's petition to reopen the previously denied claim for entitlement to service connection for a back disability, and denied the claims for service connection for left and right knee disabilities. The Veteran timely appealed the September 2014 rating decision. In August 2018, the Veteran failed to show for a scheduled hearing before the Board, and in an October 2018 Board decision, the Board determined that his hearing request was withdrawn as a result of his failure to attend the hearing. In the October 2018 decision, the Board reopened the claim for service connection for a back disability, and remanded the claims for service connection for a back disability, a left knee disability, and a right knee disability, for further development and adjudicative action. Entitlement to service connection for a back disability The Veteran contends that he has a back disability that is related to service. As noted above, the claim was remanded in October 2018. The purpose of that remand was to obtain a VA examiner's opinion as to whether the Veteran had any current back disabilities, and if so, whether any such disability was as likely as not related to service. Additionally, the examiner was to opine as to whether any back disability clearly and unmistakably pre-existed service, and if so, whether the disability was aggravated therein. In so opining, the examiner was to review Service Treatment Records (STRs) which showed a normal spine upon entrance to service, in-service treatment for various back maladies, and an August 1975 separation examination report which notes muscle spasms in the back and recurrent back pain. The examiner was to review lay statements from the Veteran regarding heavy lifting and carrying during service. The requested opinions were obtained in October 2019. The Veteran reported back pain beginning in Taiwan, during service, and denied having a back problem prior to service. He never went to a doctor during service, and instead drank the pain away. He reported that the back pain has since worsened, and he is now unable to lift objects without causing "paralyzing" pain. An x-ray which was "ordered by the examiner" was "notable for early degenerative disc disease of the lumbar spine and mild osteoarthritis of the sacroiliac joints." See October 2019 back conditions Disability Benefits Questionnaire (DBQ), p. 16. The examiner opined that the back disability was less likely than not incurred in or caused by service. The rationale in support was as follows: "All medical records in VBMS and non-government medical records were reviewed. BVA remand 10/26/2018 reviewed. Veteran served in the military from 1969-1976. Service treatment records show that the Veteran's spine was marked "normal" on entrance exam. Separation exam also noted normal exam. History notes "muscle spasms - back 1974 responds to Darvon, Valium. NCNS (No Complications No Sequelae)." Feb 25, 1976 ortho consult reported "history of low back pain x 2 weeks, no history of trauma. Has history of slipped vertebrae since high school, treated with manipulation and muscle relaxants." Symptoms during service were acute and resolved with medication, manipulation, and rest. A back exam 15 months after separation on May 27, 1977 showed normal LS Spine X-rays. There is also a normal Back C&P exam July 1983. There is no evidence of chronicity of care for a back condition. On today's exam, the Veteran has a diagnosis of degenerative disc disease. Muscle strength to lower legs is normal on exam. He offers no complaints today of pain that radiates to hips or knees, and offers no complaints of paresthesias. The current diagnosis of degenerative disc disease was less likely than not incurred in or caused by his active duty service." The examiner also opined that the back disability was less likely than not aggravated by service. The rationale in support of that opinion was as follows: "All medical records in VBMS and non-government medical records were reviewed. BVA remand 10/26/2018 reviewed. Veteran served in the military from 1969-1976. Service treatment records show that the Veteran's spine was marked "normal" on entrance exam. Separation exam also noted normal exam. History notes "muscle spasms - back 1974 responds to Darvon, Valium. NCNS (No Complications No Sequelae)." Feb 25, 1976 ortho consult reported "history of low back pain x 2 weeks, no history of trauma. Has history of slipped vertebrae since high school, treated with manipulation and muscle relaxants." Symptoms during service were acute and resolved with medication, manipulation, and rest. A back exam 15 months after separation on May 27, 1977 showed normal LS Spine X-rays. There is also a normal Back C&P exam July 1983. Temporary aggravation is plausible, but there is no evidence of permanent aggravation of the reported pre-existing back injury. C&P Back exam dated 9-16-13 was reviewed, and "denies aggravation of a back condition or slipped vertebrae from high school by active service." There is no evidence of chronicity of care for a back condition. A nexus has not been established. Although the rationale states that all of the Veteran's medical records reviewed, a review of the record suggests relevant records were not considered. First, neither rationale reflects that the Veteran's specific statements concerning in-service injury, and the course of his back condition(s) since service. Rather, the examiner provided a (detailed) list indicating review of the medical records, but stopped short of weighing the medical evidence with the Veteran's lay statements concerning his back. Second, the examiner cites that a "C&P exam dated 9-16-13 was reviewed." The Veteran never had a VA examination in September 2013, and upon review of a prior (August 2014) VA examination report DBQ, the examiner's language suggests that this piece of evidence was takenwithout review for the accuracy thereoffrom the August 2014 VA examination report. Third, the record contains a January 1977 private chiropractor's note which shows that the Veteran was treated for a low back condition. The examiner noted that treatment was "instituted March 3, 1976." An orthopedic examination indicated the presence of a herniated disc, and "neurological examination pin points [the herniated disc] to the area of the L3, L4 disc." The examiner noted that an "injury to the spine was primarily one of ligamentous and muscular origin to the supporting structures of the spine with a subluxation complex. When there are no fractures or dislocations but evidence of ligamentous and muscular strain and sprain to the spine or other joints of the body, pain and discomfort are usually encountered and experienced for a period of six to twelve months following the injury. It should also be borne in mind that permanent arthritic degenerative changes of the spine may result in tins case as they have in so many similar cases where the principle injury is that of sprain to the joints of the spine." Additionally, an October 2019 private x-ray of the lumbar spine revealed, inter alia, mild degree of flow loss of disc height at L2-L3 and at L5-S1 level with minimal subchondral sclerosis suggestive of early degenerative disc disease. There was "mild early osteoarthritis of the sacroiliac joints," and "surgical clips in the right upper quadrant." Comparison of the January 1977 and October 2019 records reflects that the Veteran was, on each occasion, seen for a condition affecting the same area in the lower backapproximately located between L2-L3 and L3-L4. Moreover, the examiner did not address the January 1977 record in the rationale. It is reasonable to infer that when considering whether a current disability of the back began in service, or is related thereto, evidence showing the presence of symptomatology in a specific region of the low back would be relevant. Thus, the rationale should have discussed the relevance, or lack thereof, of the January 1977 private chiropractor's noteespecially in light of the October 2019 x-ray imaging results. In light of these reasons, the October 2019 opinion is insufficient for purposes of adjudicating the claim; specifically, the opinions do not address relevant medical evidence in the record and appear to address medical evidence not in the record. Thus, a new opinion must be obtained which addresses the entirety of the relevant medical evidence. 1. Entitlement to service connection for a left knee injury, including secondary to back disability 2. Entitlement to service connection for a right knee injury, including secondary to back disability The Veteran contends that he has disabilities of the left and right knees, including as secondary to the back disability addressed above. Due to the nature of the Veteran's contentions concerning a link between the left and right knee injuries and the back disability; and considering that the back disability must be remanded for the reasons set forth above; the claims for service connection for a left knee injury and for a right knee injury are inextricably intertwined with the issue of entitlement to service connection for a back disability. Therefore, the appropriate remedy where a pending claim(s) is inextricably intertwined with a claim currently on appeal is to remand the claim(s) on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with a VA orthopedist, if possible, to determine the nature and etiology of any low back disability. The examiner should identify all low back disabilities, and for each disability identified, opine as to whether it is at least as likely as not (at least a 50 percent probability) that such disability is related to service. In so opining, the examiner should consider the VA treatment records, the prior VA examination report Disability Benefits Questionnaires (DBQ), and the private medical records including the January 1977 private chiropractor's note and the October 2019 imaging results. Additionally, the examiner is advised that the Veteran is competent to report his back symptoms and history, and the examiner must acknowledge, and address the relevancy of, the Veteran's lay statements regarding an incurrence or onset of a back disability in-service and the course of any such disability from the time he left service to the present. Then, if the examiner finds that any back disability is as likely as not related to service, the examiner should identify any (i) right knee disabilities and any (ii) left knee disabilities. For each disability of either knee identified, the examiner should opine as to whether it is at least as likely as not (at least a 50 percent probability) that any such disability is caused by or the result of any back disability. If the examiner opines against such a link, the examiner should then opine as to whether it is as likely as not (a 50 percent probability or greater) that any disability of either knee is aggravated (i.e. permanently worsened) beyond natural progression by any back disability. If any knee disability is found to be as likely as not aggravated beyond natural progression by a back disability, the examiner should identify the baseline level of severity of each knee disability, if possible. If the examiner is unable to do so, the examiner should explain why that is so. Then, the examiner should determine, if possible, the current severity of each knee disability, and discuss the extent of worsening caused by each back disability. If the examiner is unable to do so, the examiner should explain why that is so. (Continued on the next page) The entire claims file, including a copy of this remand, must be made available to, and must be reviewed by, the examiner. A thorough rationale should be provided in support of all conclusions drawn and opinions formed. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.