Citation Nr: 21031090 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-61 770 DATE: May 20, 2021 REMANDED Service connection for a low back disability is remanded. Service connection for a right knee disability is remanded. Service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1978 to November 2000. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for a (i) right knee disability, a (ii) left knee disability, and a (iii) low back disability. The Veteran timely appealed the January 2015 rating decision, and in a February 2020 decision the Board denied each claim. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2020 Court Order granting a Joint Motion for Remand (JMR), the Court vacated the Board's February 2020 decision and remanded the case for further development in compliance with the directives specified in the JMR. 1. Entitlement to service connection for a low back disability The Veteran seeks service connection for a low back disability, which he contends is related to service. Specifically, he argues that he has a current low back disability that is related to (i) back pain which began in service, and/or a (ii) a sebaceous cyst in the lumbar area which was present, and treated, during service. See, e.g. January 2021 Argument submitted by Veteran. June 1987 Service Treatment Records (STRs) show that the Veteran was treated for a suspected sebaceous cyst in the lower lumbar area. The Veteran was afforded a VA back conditions examination in December 2014, but the examiner did not opine as to whether the Veteran has a current back disability that is related to in-service back pain or sebaceous cyst. At the examination, the Veteran reported that "back pain started in 1985-1986 when he was doing PT in the parking lot in Texas doing sit ups in the asphalt." He reports he developed a cyst, which was removed. He has pain over where this area where it was removed in the lower back. Back pain is a 7-8/10 in the lumbar area, lasts for a few seconds until he moves/stretches. This is occurring twice weekly. He reports it is an aching pain that resolves with stretching." The examiner opined against a nexus from the back pain to service, but the opinion only addressed a completely separate, and irrelevant for purposes of this specific claim, issue: whether the back injury is "related to a specific exposure event experienced by the Veteran during service in Southwest Asia." Simply put, the examiner provided a "Gulf War" nexus opinion, rather than a direct service connection analysis. Accordingly, the VA opinion is inadequate because the examiner did not address whether service connection for a low back disability is warranted on a direct basis, including as related to the Veteran's reported in-service back pain and/or sebaceous cyst. As so, the Board finds that an additional medical opinion by an appropriate physician is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 2. Entitlement to service connection for a right knee disability 3. Entitlement to service connection for a left knee disability The Veteran seeks service connection for right and left knee disabilities. He asserts that each condition is related to service, to include that each disability began in service and/or is related to in-service injury. See, e.g. November 2014 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ), p. 4. The Veteran's separation examination report, from August 2000, shows that he had a "trick" or "locked" knee. The Veteran was afforded a VA knee conditions examination in November 2014. At the examination, the Veteran specifically reported that he had developed pain in both knees during service in 1997. Again the examiner did not address the issue of direct service connection; instead, the examiner provided a "Gulf War" opinionthat is, the examiner diagnosed a knee disability of bilateral knee pain syndrome with mild degenerative joint disease (DJD), but stated that [T]he veteran's bilateral knee pain syndrome with mild DJD bilateral knees is a disease with a clear and specific etiology and diagnosis. It is less likely as not related to a specific exposure event experienced by the veteran during service in Southwest Asia. This is based on the fact that this type of condition is not medically considered to be due to exposure to environmental hazards, but rather, due to biomechanical factors [sic]. Accordingly, the VA opinion is inadequate because the examiner did not address whether service connection for a right knee or left knee disability is warranted on a direct basis, including as related to the Veteran's reported in-service knee pain. As so, the Board finds that an additional medical opinion by an appropriate physician is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination with an orthopedist, if possible, to determine the nature and etiology of any low back disability. The examiner should respond to the following: a) Identify all disabilities associated with the low back. b) Is a disability of the back at least as likely as not (i.e. a 50 percent likelihood or greater) due to service? In so opining, the examiner should consider the Veteran's lay statements concerning in-service onset; specifically, the Veteran's report of in-service low back pain which began in 1985-1986. The examiner is advised that the Veteran is competent to report his observations concerning the onset, and nature of, his low back symptoms. Additionally, the examiner should address the Veteran's contention that he has a low back disability that is related to a sebaceous cyst, which is noted in the Service Treatment Records (STRs). The entire claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. A thorough rationale must accompany all opinions formed and conclusions drawn. 2. Schedule the Veteran for a VA examination with an orthopedist, if possible, to determine the nature and etiology of any right knee and left knee disabilities. The examiner should respond to the following: a) Identify all disabilities associated with the right and left knees; b) Is a right knee disability at least as likely as not (i.e. a 50 percent likelihood or greater) due to service? c) Is a left knee disability at least as likely as not (i.e. a 50 percent likelihood or greater) due to service? In so opining, the examiner should consider the Veteran's lay statements concerning in-service onset of knee pain in 1997 as well as the August 2000 separation examination which indicates the presence of a "trick" knee or "locked" knee. The examiner is advised that the Veteran is competent to report his observations concerning the onset, and nature of, his right and left knee symptoms. The entire claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. A thorough rationale must accompany all opinions formed and conclusions drawn. M.W. Kreindler 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.