Citation Nr: 22017200 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 14-31 010A DATE: March 24, 2022 ORDER Entitlement to service connection for low back disabilities, diagnosed as posttraumatic chronic lumbosacral sprain and strain with degenerative disc disease, degenerative arthritis, and herniated nucleus pulposus, is granted. REMANDED Entitlement to an increased rating in excess of 10 percent for a left knee disability, prior to September 8, 2014, and in excess of 20 percent thereafter is remanded. Entitlement to an increased rating in excess of 10 percent for chondromalacia of the right knee is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The most probative evidence reflects that low back disabilities, diagnosed as posttraumatic chronic lumbosacral sprain and strain with degenerative disc disease, degenerative arthritis, and herniated nucleus pulposus, were incurred during active duty. CONCLUSION OF LAW The criteria to establish service connection for low back disabilities, diagnosed as posttraumatic chronic lumbosacral sprain and strain with degenerative disc disease, degenerative arthritis, and herniated nucleus pulposus, are met. 38 U.S.C. §§ 1101, 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1976 to August 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2009, January 2011, March 2011, and December 2014 rating decisions issued by the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida. The Veteran was afforded a hearing before a Veterans Law Judge (VLJ) in May 2018. A copy of the hearing transcript is associated with the file The VLJ who conducted the hearing is no longer employed at the Board. In February 2022, a letter was sent to the Veteran informing him of right to request an additional Board hearing. The Veteran, through his attorney, in a March 2022 letter waived his right to a new hearing. In July 2018, the Board reopened the claim of service connection for a low back disability, to include discogenic disease, L5-S1. The Board also remanded the issues of entitlement to an increased rating for chondromalacia of the right knee, increased rating for left knee osteochondroma with mild degenerative joint disease, and entitlement to a TDIU. Per the Board's remand directives, the RO was directed to provide the Veteran with new VA examinations and obtain etiological opinions. Specifically, the RO was directed to obtain opinions that addressed the Veteran's in-service complaints and treatment for back pain to include after separation from service. The requested development was completed, and in a September 2020 decision, the Board denied, inter alia, entitlement to service connection for a low back disability, entitlement to an increased rating in excess of 10 percent for a left knee disability prior to September 8, 2014, and in excess of 20 percent thereafter, entitlement to an increased rating in excess of 10 percent for chondromalacia of the right knee, and TDIU. The Veteran appealed the Board's decision to the Court of Appeals for Veterans' Claims (Court) and in a June 2021 order, pursuant to a Joint Motion for Partial Remand (JMPR), the Court set aside the September 2020 decision and remanded the issues back to the Board. The Veteran's appealed issues have been returned to the Board for further appellate consideration congruent wit6h the parties' agreements in the Court-endorsed JMPR. 1. Entitlement to service connection for a low back disability In this case, the Veteran seeks service connection for a low back disability. During his May 2018 Board hearing, he testified that he was pushed during back training and fell injuring his back. He then carried heavy equipment on his back and experienced residual pain ever since. To begin, the Board notes the Veteran's service treatment records (STRs) indicate in-service treatment for low back pain. Further, the record clearly indicates diagnoses of several low back disabilities during the appeal period, to include posttraumatic chronic lumbosacral sprain and strain with degenerative disc disease, degenerative arthritis, and herniated nucleus pulposus. In view of above, elements (1) and (2) to establish direct service connection for low back disabilities have been met, and thus, the crux of the Veteran's appealed issue is whether the most probative evidence of record confirms the Veteran's assertions of a medical nexus between his in-service low back injury/symptoms and his current low back disabilities. To the above point, the record includes several VA examiners' medical nexus opinion; however, all have been found to be inadequate for various reasons by either the Board or the Court, the latter via the parties' agreements in the JMPR. Pertinently, after the Veteran's appeal was returned to the Board by the Court, the Veteran's private attorney submitted an assessment of the Veteran's low back written by a private physician who interviewed the Veteran via telephone and reviewed his entire VA file. After completing these actions, the private clinician opined in January 2022 that the Veteran's low back disabilities present during the appeal period, diagnosed as posttraumatic chronic lumbosacral sprain and strain with degenerative disc disease, degenerative arthritis, and herniated nucleus pulposus, were at least as likely as not incurred during active duty. The Board finds the private January 2022 opinion to be highly probative of the matter forming the crux of the Veteran's appeal, as such cites to medical evidence from the Veteran's file, includes consideration of his competent and credible lay statements, and includes a rationale alluding to sound medical principles. Bloom v. West, 12 Vet. App. 185, 187 (1999). Further, the Board notes that the record also includes statements from the Veteran's treating VA physician from March 2010 and April 2010 which are congruent with the conclusions of the January 2022 private physician. As stated above, all other medical nexus evidence of record has been found to be inadequate. In view of above, the Board concludes that all of the elements to establish direct service connection for the Veteran's low back disabilities, diagnosed as posttraumatic chronic lumbosacral sprain and strain with degenerative disc disease, degenerative arthritis, and herniated nucleus pulposus, have been demonstrated. In such cases, the controlling laws provide that service connection for these disabilities is warranted. 38 U.S.C. §§ 1101, 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND 1. Entitlement to an increased rating in excess of 10 percent for a left knee disability, prior to September 8, 2014, and in excess of 20 percent thereafter is remanded. 2. Entitlement to an increased rating in excess of 10 percent for chondromalacia of the right knee is remanded. The Veteran seeks an increased rating for his left knee disability in excess of 10 percent prior to September 8, 2014, and in excess of 20 percent thereafter. In addition, the Veteran seeks an increased rating in excess of 10 percent for chondromalacia of the right knee. In a December 2014 rating decision, the Veteran's evaluation for his left knee disorder was increased from 10 to 20 percent, effective September 8, 2014. This was on the basis of compensable limitation of extension and noncompensable limitation of flexion. During the Veteran's hearing, he testified that his symptoms have progressed in severity. As such, these matters were remanded in order to provide him with additional VA examinations. Per the July 2018 Board remand directives, the Veteran was afforded a VA examination for his knees in October 2019. In the September 2020 decision, the Board found an increased rating for either knee disability to not be warranted. In addition, the Board found separate ratings to also not be warranted. However, in the JMPR, the parties found that the Board failed to adequate address lay evidence of knee instability. Therefore, the Board finds a remand is necessary in order to provide the Veteran with an additional VA examination to establish whether either of the Veteran's service-connected knee disabilities are manifested by instability of either joint. 3. Entitlement to a TDIU is remanded. The Veteran contends he is unable to secure and maintain substantially gainful employment due to his service-connected disabilities. In light of the above, given the remand, the Board finds that the issue of TDIU is inextricably intertwined with the claim for service connection for a low back disability, and increased ratings for the right and left knees. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, the issue of entitlement to a TDIU must be remanded. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to reassess the severity of the Veteran's left and right knee disabilities to include whether the Veteran experiences instability. The examination should include all diagnostic testing or evaluation needed to make the required determinations, including range of motion testing and stability testing. The examiner must comment on functional loss after repeated use, during flare-ups, and after use over time. The examiner must also describe functional impairment or restrictions that would impact of the Veteran's employability. A complete rationale must be provided in support of all opinions offered. 2. Thereafter, the AOJ must undertake all development necessary to readjudicate the Veteran's appeal seeking a TDIU, to include verifying his complete educational and occupational history and/or obtaining any opinions concerning whether his service-connected disabilities, individually or in concert, have precluded him from participating in a substantially gainful occupation at any time during the appeal period. 3. Thereafter, the AOJ must readjudicate the Veteran's appealed issues in light of the totality of the evidence. If any benefit sought on appeal remains denied, the Veteran and his attorney must be furnished a copy of the readjudication and afforded the applicable opportunity to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. DeBoer, 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.