Citation Nr: 21031324 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 18-33 871A DATE: May 21, 2021 REMANDED Entitlement to an increased rating in excess of 20 percent for healed fracture, left femur with posttraumatic arthritis, left knee (left knee/femur disability) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to service connection for a low back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from April 1966 to February 1970. This appeal arises from a September 2014 rating decision, denying service connection for a claimed low back condition, identified as spondylolisthesis, and denying an increased rating claim for a left knee/femur disability. The Veteran testified at a Board virtual hearing in February 2021, before the undersigned Veterans Law Judge (VLJ). A transcript is of record. 1. Entitlement to an increased rating in excess of 20 percent for left femur/knee disability. The Veteran's last VA examination to assess the severity of his service-connected left knee/femur disability was in August 2014, over 6 years ago. While the mere passage of time does not, in and of itself, trigger the need for a remand for another more contemporaneous examination, the record shows that the Veteran's symptoms might have worsened since this examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). During the February 2021 hearing, the Veteran's representative indicated that the Veteran's left knee/femur condition worsened since the last VA examination, particularly pointing out that he suffers from instability in the left knee joint. The Veteran testified to instability, "Sometimes it gives out on me, like if I was in a booth in a restaurant and I stood up to get out, it would give out and I would hit the floor. After it first happened it was not that bad but it seems like as time went on it got worse. And actually, sometimes it is excruciating like a knife going into my knee." See February 2021 Board hearing transcript, at 3. In contrast, instability was not shown at the August 2014 VA examination. Another VA compensation examination is needed to ascertain if the disability has worsened. 38C.F.R. §3.327. Further, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). The Veteran's disability is currently rated under Diagnostic Code 5255. The old rating criteria for DC 5255 provides for an increased rating of 30 percent for malunion of the femur, with marked knee or hip disability. However, the new rating criteria for DC 5255 directs the rater to evaluate malunion of the femur under diagnostic codes 5256, 5257, 5260, or 5261 for the knee, or 5250-5254 for the hip, whichever results in the highest evaluation. Because the record does not contain sufficient evidence to rate the Veteran's disability under the new rating criteria, a new examination is warranted. 2. Entitlement to a TDIU. The Veteran contends he has been unable to work since approximately 2011 due to occupational impairment from his service-connected left knee/femur disability, as well as his low back disability, for which he has appealed for service connection. See Board hearing transcript; and April 2016 TDIU application (VA Form 21-8940). He reports working in the construction industry, with two years of college education. Id. The service-connected left knee/femur claim is inextricably intertwined with the TDIU claim, inasmuch as both concern the occupational impairment due to the service-connected left knee/femur disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). 3. Entitlement to service connection for a low back disorder. The Veteran contends that his low back condition is due to service and/or secondary to his service-connected left knee/femur disability. In this regard, an August 2014 VA examiner provided a negative medical opinion against the claim. The examiner stated, "It is less likely as not that the Veteran's current back condition is proximately due to or caused by the left knee; or that the back was aggravated by the left knee injury. The veteran has documented back injury during MVA in 2008....Additionally, the Veteran does not walk with an altered gait and there is no other pathophysiology to connect the back condition to the left knee condition." However, the Veteran's representative has argued that the negative nexus opinion in 2014 did not review the case on a direct basis even though there are indications in treatment records documenting that the Veteran was treated for lumbar spine condition in service. Notably, a September 1969 service treatment record shows that the Veteran sought treatment after he was kicked to the right side by an unspecified assailant, with physical examination finding right-sided lumbar paravertebral muscle spasm and tenderness, with an impression of right-sided contusion and muscle spasm. However, on January 1970 separation examination, there is no diagnosis for any low back disorder and he had a clinically normal spine evaluation. Thus, the August 2014 VA examiner's opinion is inadequate for not addressing the possibility of a direct nexus to service for a current lumbar spine disability. When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Further, the Veteran has submitted an April 2021 positive medical opinion on the low back claim by a private physician, Dr. G.S. The opinion addresses the matter of whether the Veteran's low back pain is secondary to his-service-connected left knee condition. The opinion was based on a review of the record without examination of the Veteran. The Board also notes that the private medical opinion does not offer an opinion with regard to direct service connection. Given the state of the record, the Board finds that additional development is warranted. Last, the claims file contains private back treatment records with Physical Medicine and Pain Management Associates, but only dated through 2016. On remand, the AOJ should ask the Veteran to identify any outstanding relevant private treatment records and attempt to obtain all identified reports. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of any medical provider, VA or private, who has treated him for his low back or left knee/femur problems. After securing any necessary releases, request any relevant records identified that are not duplicates of those already contained in the claims file. Obtain outstanding VA treatment records, if any. If any requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such. 2. After associating any additional medical treatment records, schedule the Veteran for an examination(s) by an appropriate clinician(s) to determine the current severity of his service-connected left knee/femur disability. The examiner(s) should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the former and revised rating criteria. See 38 C.F.R. § 4.71a, DC 5255, amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). To the extent possible, the examiner(s) should identify any symptoms and functional impairments due to his service-connected left femur/knee disability and discuss the effect on any occupational functioning and activities of daily living. 3. After associating any additional medical treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's low back disability. The examiner should address the following: (a) Identify all current diagnoses for the claimed low back disability, since the pendency of or recent to the filing of the January 2014 claim. Specifically confirm if the Veteran has been diagnosed with thoracolumbar spine arthritis. It is also noted that the Veteran's low back pain should be considered as a disability if it results in functional impairment in his earning capacity. (b) After review of the claims file, the examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed low back disability is caused by or otherwise etiologically related to his active service. (c) The examiner should also opine as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed low back disability (e.g., migraines) was caused by, proximately due to, and/or aggravated by the service-connected left knee/femur disability. The term "aggravation" means any incremental increase in disability beyond its natural progression, regardless of permanence. If aggravation is found, then, to the extent possible, the examiner should establish a baseline level of severity of the low back disorder prior to aggravation by the service-connected left knee/femur disability. Rationale must be provided for the opinion proffered. The examiner must reconcile the positive, private medical opinion by Dr. G.S., dated in April 2021. The examiner must consider any competent lay statements by the Veteran on the history of his claimed disability during service and symptoms (e.g., pain) following service. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Biswajit Chatterjee, 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.