Citation Nr: 21041586 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 10-40 812 DATE: July 9, 2021 REMANDED Service connection for a low back disability is remanded. Service connection for hypertension is remanded. An increased rating greater than 10 percent for left knee chondromalacia is remanded. An increased rating greater than 10 percent for right knee chondromalacia is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1994 to March 1999. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO) in December 2009 (denying, inter alia, service connection for a low back disability, increased ratings for left and right knee chondromalacia, and denying a request to reopen a claim of service connection for hypertension). In May 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is in the record. In October 2017 and November 2020, the Board remanded the Veteran's case for further development. Despite the additional and regrettable delay, another remand is required. 1. Service connection for a low back disability is remanded. The Veteran attended a December 2017 VA examination for his low back condition. The examiner opined that the Veteran's condition was less likely than not caused or aggravated by his other service-connected disabilities, in part, because there was no gait disturbance. However, a January 2020 VA examination indicated that the Veteran's bilateral foot condition does cause interference with standing, locomotion, and additional functional loss during flare-ups. The January 2020 examiner also noted the Veteran's service-connected bilateral foot condition prevents him from prolonged standing and walking as needed for his job that the Veteran reported he does not run at all and is absent from work twice a month. This more recent medical evidence must be considered by the examiner in rendering a secondary service connection opinion before the Board may fully adjudicate the Veteran's claims. Therefore, a remand is required for an addendum medical opinion. 2. Service connection for hypertension is remanded. Due to a typographical error in the Board's prior remand directives, the examiner was not able to fully complete the requested opinion. Despite the typographical error, the examiner incorrectly applied the obesity intermediate step analysis in accordance with the specific directives. Therefore, a remand is required for an addendum opinion regardless of the prior error. 3. An increased rating greater than 10 percent for left and right knee chondromalacia is remanded. In its November 2020 remand order, the Board instructed the RO to obtain and associate with the electronic claims file record, the Veteran's VA-authorized, Non-VA treatment records and scanned VA medical records. The Board acknowledges the RO sent one letter to the Veteran requesting that he complete a VA Form 21-4142, Authorization to Disclose Information and VA Form 21-4142a, General Release for Medical Provider Information and that VA has not yet received a response. It still appears that the previously scanned records (within VA's constructive custody) have not been associated with the Veteran's electronic claims file. VA treatment and VA authorized non-VA treatment records must be obtained before final adjudication these issues, regardless of relevance. See Sullivan v. McDonald, 815 F.3d; 786, 790-91 (Fed. Cir. 2016); Turner v. Shulkin, 29 Vet. App. 207, 210; see also Jones v. Wilkie, 918 F.3d 922, 926-27 (Fed. Cir. 2019). A remand is required to allow VA to obtain these records before the Board can adjudicate the claim. [The Board acknowledges the RO's prior efforts and expresses its sincere efforts, and requests the RO make every reasonable effort to ensure that the records are made available.] The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. Obtain and associate with the electronic claims file record the Veteran's scanned VA medical records (i.e., scanned VistA Imaging documents attached to CAPRI notes). If any such records are not available, or unobtainable, a formal finding should be made and associated with the record. 3. Obtain and associate with the electronic claims file record all the Veteran's VA-authorized, Non-VA treatment records (e.g., VHA Choice) regardless of the relevance to the issues on appeal. If any such records are not available, or unobtainable, a formal finding should be made and associated with the record. 4. After completion of directives two and three, provide the complete record to and obtain an addendum opinion from an appropriate clinician to determine the nature and cause of the Veteran's hypertension. Based on the factual evidence of record, the clinician must provide an opinion that responds to the following: 5. Is it at least as likely as not (defined as a 50% or better probability) that the Veteran's current hypertension was proximately caused by or aggravated by any or all of his service-connected disabilities? In answering this question, the clinician's attention is drawn to the February 2020 private medical opinion's supporting literature that states that "significant clinical consequences of the disorder [OSA] include cardiovascular disease (hypertension, stroke, myocardial infarction, heart failure." (Specifically, in light of his service connected OSA, is his diagnosed hypertension caused or aggravated by the OSA?) 6. Is it at least as likely as not (defined as a 50% or better probability) that the Veteran's current obesity was proximately caused by or aggravated by his service-connected disabilities, including OSA, plantar fasciitis, ankle arthritis, and/or bilateral knee chondromalacia? The Board notes here that the crux of the Veteran's contention is that he is unable to exercise normally as a means to control his weight because of his service-connected disabilities. For example, the clinician's attention is drawn to the January 2020 VA foot examination which indicated the Veteran does not run at all due to his foot and knee disabilities. 7. If the answer to 4(b) above is positive, is it at least as likely as not (defined as a 50% or better probability) that the Veteran's current hypertension was proximately caused by or aggravated by his obesity? The clinician is advised that AGGRAVATION is defined as any increase in severity of the disability beyond its natural progression, regardless of permanence or measurability. Detailed rationale and reasoning for all opinions and conclusions provided is required BY LAW. Providing an opinion without a thorough explanation will delay processing of the claim and may result in a clarification being requested. If it is not possible to provide any of the requested information, the clinician must state whether this is because of a deficiency in the state of general medical knowledge (that is, no one could respond, given medical science and the known facts), a deficiency in the record (that is, additional facts are required), or the clinician (that is, the clinician does not have the required knowledge or training). If the clinician cannot provide answers because further information, diagnostic studies, or an examination are required, all reasonable steps to obtain this information, diagnostic studies, or an examination should be exhausted before concluding that the answer cannot be provided. 8. After the development has been completed, the AOJ should arrange for a medical opinion, with examination if the clinician deems it necessary, to determine the nature and cause of the Veteran's low back disability(ies). The Veteran's claims file (including this remand) must be reviewed by the clinician. Based on a review of the record and examination of the Veteran, the clinician must opine as to the following: 9. Please identify, by diagnosis, all of the Veteran's low back disability(ies). 10. For each disability identified, is it AT LEAST AS LIKELY AS NOT (50% OR GREATER PROBABILITY) that such disability was either caused or aggravated by his bilateral knee, ankle, or foot disabilities? Please explain why. The opinion MUST address whether the disability INCREASED IN SEVERITY BEYOND ITS NATURAL PROGRESSION (i.e., was aggravated). The clinician's attention is drawn to (and must address) the following records (the following is a brief factual background and not intended to be a substitute for your review of the claims folder): i. The July 2017 opinion by Dr. Fogle that fallen arches in the feet may cause spine problems. ii. The May 2017 Board hearing testimony by the Veteran, which included testimony that his spine condition becomes worse when his pain in his feet, knees, and ankles are present. iii. The January 2020 VA examination in which the clinician noted the Veteran's service-connected bilateral foot condition prevents him from prolonged standing and walking as needed for his job and the Veteran reported he does not run at all and is absent from work twice a month. If Veteran's low back disability is found to have been aggravated by any of his service-connected disabilities, the clinician must specify, to the extent possible, the degree of additional disability resulting from the aggravation, indicating the "baseline" severity of the Veteran's low back disability prior to any aggravation and the level of severity existing after the aggravation occurred. The clinician MUST address the Veteran's subjective complaints of pain. 11. For each disability identified that is not secondary to a service-connected disability, is it AT LEAST AS LIKELY AS NOT (50% OR GREATER PROBABILITY) that it was incurred in or caused by the Veteran's military service? Please explain why. The clinician should consider and discuss as necessary the Veteran's statements regarding his work history and trauma at work (see June 2017 private treatment records). If it is not possible to provide any of the requested information, the clinician must state whether this is because of a deficiency in the state of general medical knowledge (that is, no one could respond, given medical science and the known facts), a deficiency in the record (that is, additional facts are required), or the clinician (that is, the clinician does not have the required knowledge or training). If the clinician cannot provide answers because further information, diagnostic studies, or an examination are required, all reasonable steps to obtain this information, diagnostic studies, or an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) should be exhausted before concluding that the answer cannot be provided. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Williams, 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.