Citation Nr: 21031980 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 17-65 327 DATE: May 25, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected left knee disability prior to January 6, 2020 is remanded. Entitlement to a disability rating in excess of 30 percent for service-connected left knee disability from March 1, 2021 is remanded. Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from October 1973 to July 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Notably, these matters were previously before the Board in December 2019, at which time the Board, in relevant part, remanded the claim for entitlement to service connection for a low back disability and denied the claims for entitlement to an increased disability rating for service-connected left knee disability and entitlement to service connection for sleep apnea. The Veteran appealed the Board's denial of the increased disability claim to the U.S. Court of Appeals for Veterans Claims (the Court), which issued a joint motion for partial remand (JMPR) in November 2020, vacating the denial of the claim and remanding the issue to the Board to provide an adequate statement of reasons and bases for its denial. The Veteran did not appeal the Board's denial of entitlement to service connection for sleep apnea; and the Court accordingly dismissed the issue in its November 2020 order. The issue of entitlement to service connection for a low back disability has now been returned to the Board by the agency of original jurisdiction (AOJ) for further appellate review. However, for the reasons discussed below, the Board finds that a remand is warranted for the matters at hand before they may be properly adjudicated on their merits. 1. Entitlement to a disability rating in excess of 10 percent for service-connected left knee disability prior to January 6, 2020 is remanded. 2. Entitlement to a disability rating in excess of 30 percent for service-connected left knee disability from March 1, 2021 is remanded. As noted above, the claim of entitlement to an increased disability rating for the Veteran's service-connected left knee disability was denied by the Board in December 2019. At that time, the issue was characterized as entitlement to a disability rating in excess of 10 percent. See Board decision dated December 20, 2019. However, in the time since the claim was last before the Board, the Veteran underwent a total left knee replacement. Accordingly, he was awarded a temporary 100 percent evaluation for the disability, from January 6, 2020 to March 1, 2021 and a 30 percent evaluation thereafter. See rating decision dated January 14, 2020. As the temporary total disability rating was an award of the maximum allowable benefit, only the disability ratings for the periods with an award of less than total disability remain on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1159 (Fed. Cir. 1997). Accordingly, the claim for an increased disability rating for service-connected left knee disability has been recharacterized to reflect the assignment of staged ratings. In its November 2020 JMPR, the Court observed that the findings of the VA examinations from December 2014, November 2016, and February 2019 were not in compliance with relevant case law. Specifically, the medical reports did not adhere to the holdings of Mitchell v. Shinseki (explaining that it is important for the medical examiner to note "whether and at what point during the range of motion [testing] the [Veteran] experience[s] any limitation of motion that [is] specifically attributable to pain") and Sharp v. Shulkin (stating that a medical opinion that "cannot be provided without resort to speculation" is adequate only when it is clear that an examiner "considered all procurable and assembled data," and that the inability to provide an opinion without resorting to speculation "reflect[s] the limitation of knowledge in the medical community at large," rather than a limitation "based on lack of expertise [of the individual examiner], insufficient information, or unprocured testing," (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010))). Thus, the Board finds that retrospective opinions are needed to ascertain the severity and nature of the Veteran's disability at the time of the December 2014, November 2016, and February 2019 VA examinations. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008) (discussing situations when it may be necessary to obtain a "retrospective" medical opinion to determine the date of onset or severity of a condition in years past); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). The Veteran should be afforded a new VA examination to allow him the opportunity to undergo an examination of his left knee and to relay his pertinent symptomatology during the periods on appeal to a VA examiner prior to the examiner's furnishing the retrospective opinions. Moreover, since the AOJ last considered the Veteran's claim for entitlement to an increased rating for his left knee disability, additional pertinent evidence has been associated with the claims file in the form of VA treatment records, in particular, a March 2020 VA examination report. Although an automatic waiver applies to any private treatment records that were submitted by the Veteran, VA does not interpret 38 U.S.C. § 7105(e) as extending to evidence that was not submitted by the Veteran, such as VA treatment records and VA examination reports. Neither the Veteran nor his representative have submitted a waiver of this evidence; therefore, the Veteran's claims must be returned to the AOJ for the issuance of a Supplemental Statement of the Case (SSOC) if, after the requested development has been accomplished, the claims on appeal remain denied. 3. Entitlement to service connection for a low back disability is remanded. Although it regrets the additional delay, the Board finds that another remand is warranted for the issue of entitlement to service connection for a low back disability, in order to ensure compliance with the terms of the Board's prior remand. The Veteran has consistently maintained that he has a low back disability attributable to his military service or, alternatively, caused or aggravated by his service-connected left knee disability, left hip strain, and/or right knee tendonitis. See, e.g., Notice of Disagreement dated February 21, 2017; see also Appellate Brief dated April 21, 2021. Consistent with the Board's December 2019 remand directives, the Veteran was afforded a VA examination to determine the nature and etiology of any low back disability he has experienced. Upon a physical evaluation of the Veteran, a physician's assistant documented that the Veteran's back did not exhibit objective evidence of a current medical diagnosis. See VA examination dated March 5, 2020. The clinician reported, in pertinent part, that the Veteran "denies back pain or injuries." The clinician also provided negative nexus opinions for both direct and secondary service connection of the claimed disability on the basis that the Veteran was not in receipt of a current lower back diagnosis. See medical opinion dated March 5, 2020. In reaching this conclusion, the examiner simply noted that the Veteran's lower back did not present "objective evidence of a low back disability." However, the he did not address medical evidence in the record documenting low back pain. See, e.g., medical treatment records dated November 7, 2019 and December 20, 2019. Even without a current diagnosis, reports of low back pain may constitute a current disability to the extent they result in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that pain causing functional impairment can constitute a current disability). Although the examiner noted that the Veteran exhibited no back disability at the time of the March 2020 evaluation, no opinion was rendered as to whether the Veteran had a low back disability at any time during the pendency of the claim prior to the date of the examination; and, furthermore, the favorable medical evidence of record was not addressed. As such, the opinion is inadequate for adjudicative purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, another remand is required in order to offer the Veteran another VA examination to ascertain the presence of any current low back disability and to elicit a history of his low back symptomatology to determine whether he experienced any low back disability during the pendency of his claim. Thereafter, another nexus opinion, supported by a well-reasoned rationale, must be procured. Accordingly, the matters are REMANDED for the following action: 1. Schedule the Veteran for VA examinations by appropriate medical professionals to (1) assess the current severity of his service-connected left knee disability and (2) ascertain the nature and etiology of any low back disability present throughout the pendency of the claim. Following a review of the claims file, the examiner should provide findings relevant for purposes of rating the Veteran's left knee disability, including with regard to pain on range of motion testing and an estimation of functional loss. (a.) The examiner should specifically test the Veteran's left knee for pain on both active and passive motion, in weight-bearing and nonweight-bearing. (b.) The examiner should elicit the history of the Veteran's symptoms and the functional impact he has experienced during any reported flare-ups of his left knee disability and estimate the amount in degrees of range of motion lost due to flare-ups, if the Veteran reports current flare-ups but the examination is not conducted during a flare-up. (c.) The examiner should also provide a retrospective opinion regarding testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing for the Veteran's left knee. In providing the retrospective opinion, the examiner is asked to estimate the amount in degrees of range of motion lost due to flare-ups experienced by the Veteran at the time of the examinations conducted in December 2014, November 2016, and February 2019, if possible. (d.) In providing the retrospective opinion, the examiner should also note whether, upon repetitive motion, there was any pain, weakened movement, excess fatiguability, lack of endurance, or incoordination over time; and if so, the examiner should provide an estimate of the limitation in terms of degrees of range of motion at the time of the examinations conducted in December 2014, November 2016, and February 2019, if possible. If there was no pain, no limitation of motion, and/or no limitation of function, such findings must be noted in the report. If the examiner cannot provide some or all such retrospective opinions, the examiner must make clear that he or she has considered all relevant, procurable data, but that any member of the medical community at large could not provide such an opinion without resorting to speculation. The examiner is furthermore asked to provide the following opinions regarding the Veteran's claimed low back disability: (a.) Identify whether the Veteran has any current low back disorder, which may include pain alone that rises to the level of functional impairment. If a diagnosis or functional impairment is not shown, it should be explained why this is so. In doing so, the examiner should elicit from the Veteran a history of his low back symptomatology and identify any low back disability present during the pendency of the Veteran's claim, i.e., October 27, 2016 to the present. (b.) If any current low back diagnosis is reported, or if any low back diagnosis throughout the pendency of the Veteran's claim is reported, the examiner is asked to address the following: (i.) Is it at least as likely as not (50 percent probability or greater) that any low back diagnosis was incurred in, or is otherwise etiologically related to, the Veteran's military service? (ii.) Is it at least as likely as not (50 percent probability or greater) that any low back diagnosis was (i) caused or (ii) aggravated by any of the Veteran's service-connected disabilities, to include his left knee disability, left hip strain, and/or right knee tendonitis? In rendering the above opinions, the examiner should specifically address documentation of low back pain and other symptomatology, such as that reported in the November and December 2019 medical treatment records. The examiner should note that the phrase "at least as likely as not" does not mean "within the realm of medical possibility," but rather that the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a "permanent worsening" of a nonservice-connected disability is not required to establish secondary service connection on the basis of aggravation. The examiner must provide a complete rationale for all opinions, citing to supporting clinical data, the Veteran's lay statements, and/or medical literature, as appropriate. The examiner is advised that the Veteran is competent to report observable symptomology. If the examiner cannot provide an opinion without resorting to speculation, the he or she should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. Readjudicate the issues remaining on appeal. If any benefit sought is not granted, then the Veteran and his representative should be furnished a Supplemental Statement of the Case that has reviewed all evidence added to the claims file since the last adjudication, including the March 2020 VA knee examination, and afforded an opportunity to respond before the record is returned to the Board for further review. Amanda Baker Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Tolbert, 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.