Citation Nr: 22036633 Decision Date: 06/24/22 Archive Date: 06/24/22 DOCKET NO. 17-61 691 DATE: June 24, 2022 REMANDED Entitlement to service connection for a right knee disability, to include as secondary to a left knee disability, is remanded. Entitlement to service connection for a low back disability, to include as secondary to a left knee disability, is remanded. Entitlement to service connection for a gastrointestinal disorder (claimed as a stomach condition and nausea), to include duodenitis and/or irritable bowel syndrome (IBS), and to include as secondary to posttraumatic stress disorder (PTSD) with alcohol use disorder and cannabis use disorder, is remanded. Entitlement to an initial rating in excess of 10 percent for left knee flexion is remanded. Entitlement to an initial rating in excess of 10 percent for left knee extension is remanded. Entitlement to an initial rating in excess of 10 percent for left knee instability is remanded. Entitlement to a temporary total rating for convalescence pursuant to 38 C.F.R. § 4.30 for left knee surgery is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 2010 to March 2013, including service in Afghanistan. His decorations include the Combat Infantryman Badge (CIB) and Parachutist Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In July 2021, the Veteran testified before the undersigned. In September 2021, the Board remanded the matter for additional development. 1. Entitlement to service connection for a right knee disability, to include as secondary to a left knee disability, is remanded. 2. Entitlement to service connection for a low back disability, to include as secondary to a left knee disability, is remanded. The February 2022 VA examiner determined that the Veteran did not have underlying back or right knee diagnoses. However, the Veteran reported right knee pain on movement, swelling with decreased mobility, weakness, and soreness. Additionally, the Veteran reported difficulty walking and bending down to pick up objects for work, and the examiner endorsed functional impact from the Veteran's right knee symptoms. He reported that flare-ups have caused him to miss work. In regards to his back, the Veteran reported lower back pain that results in difficulty walking and prolonged sitting. The February 2022 VA examiner noted additional loss of range of motion of the back following repeated use over time, and functional impact from the Veteran's back symptoms. Furthermore, the Veteran testified as to back and right knee pain that reaches the level of a functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (2018). Thus, based on the Veteran's competent and credible reports, a back and right knee disabilities are established. As the examiner based his negative nexus opinion on the premise that the Veteran does not have the claimed disabilities, an addendum opinion must be obtained on remand. 3. Entitlement to service connection for a gastrointestinal disorder, to include duodenitis and/or IBS, and to include as secondary to PTSD with alcohol use disorder and cannabis use disorder, is remanded. In accordance with the September 2021 Board remand, the Veteran was afforded a VA gastrointestinal examination in February 2022. The examiner diagnosed IBS and duodenitis. In providing a negative nexus opinion, the examiner noted that a March 2014 medical note related the Veteran's nausea to his use of marijuana. However, the examiner failed to address the Veteran's report of nausea related to medications used to treat his service-connected PTSD. See July 2018 VA PTSD examination report. The examiner noted that the cause of IBS remains unknown and indicated that duodenitis is not caused by gastroenteritis. The Board notes that the examiner failed to address the Veteran's competent and credible report of nausea since his return from Afghanistan. Thus, a new medical opinion is required on remand. 4. Entitlement to an initial rating in excess of 10 percent for left knee flexion is remanded. 5. Entitlement to an initial rating in excess of 10 percent for left knee extension is remanded. 6. Entitlement to an initial rating in excess of 10 percent for left knee instability is remanded. In accordance with the September 2021 Board remand, the Veteran was afforded a VA knee examination in February 2022. However, February 2022 VA examination does not adequately address the Veteran's reported flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The February 2022 VA examiner indicated that pain significantly limited functional ability with repeated use over time, as well as with flare-ups. However, the described functional impairments in terms of range of motion, for flare-ups, were the same as the initial range of motion findings. Given these seemingly contradictory findings, an addendum opinion is warranted on remand. 7. Entitlement to a temporary total rating for convalescence pursuant to 38 C.F.R. § 4.30 for left knee surgery is remanded. The Veteran asserts that a temporary total rating is warranted following the March 2018 left knee surgery. The Board acknowledges that VA records note a history of anterior cruciate ligament (ACL) surgery on March 30, 2018, but the specifics are not known and to date the Veteran has not submitted records related to this surgery or provided an authorization for their release. Notably, "[t]he duty to assist is not always a one-way street." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Because the case is being remanded, the Veteran should be afforded another opportunity to complete and return VA Form 21-4142a (Release for Medical Provider Information) or submit records on his own behalf. If he is to have a reasonable opportunity to prevail on his claim, he must respond with specificity to VA's requests for additional information. Otherwise, his claim may be denied. 8. Entitlement to a TDIU is remanded. Consistent with the September 2021 remand directives, the October 2021 notice letter included a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) for the Veteran to submit. To date, this information has not been received by VA. Id. Because the case is being remanded, the Veteran should be afforded another opportunity to complete and return VA Form 21-8940. If he is to have a reasonable opportunity to prevail on his claim, he must respond with specificity to VA's requests for additional information. Otherwise, his claim may be denied. Finally, any outstanding VA and private treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding private treatment records, to include records related to the Veteran's March 30, 2018, left knee ACL surgery with a non-VA provider. If any records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 3. Afford the Veteran another opportunity to complete and return VA Form 21-8940. 4. Obtain an addendum opinion from an examiner other than the February 2022 examiner addressing the etiology of the Veteran's back and right knee disorders. The entire claims file should be made available to and must be reviewed by the examiner, to include the July 2021 Board hearing transcript. See pages 10-15, 21-25. The examiner must concede that the Veteran has current back and right knee disabilities for VA purposes based on demonstrated functional impairment that impacts earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (2018). Failure to make this concession or basing a negative opinion on the lack of a diagnosis will render the opinion inadequate. This means that even if you indicate no diagnosed disability, the Veteran still has a disability for VA purposes, you still must render an etiology opinion, and basing a negative opinion on the lack of a diagnosed disability will render the opinion inadequate. After conceding that the Veteran has current back and right knee disabilities, the examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's back and right knee disabilities: (a) had their onset during or are otherwise etiologically related to the Veteran's service, to include as a result of the Veteran's parachute jumps or the cumulative impact of his duties as an infantryman in Afghanistan. In addressing this question, the examiner is advised that the Board has conceded an in-service injury as consistent with the circumstances of his service. In this regard, his service records document parachute jumps and he competently and credibly reported carrying up to 150 pounds of equipment. Moreover, the Veteran competently and credibly reported low back pain since service. In addressing this question, the examiner must assume the above statements as true, even despite the absence of "objective documentation." i. Please state whether the Veteran's loss of range of motion of the back following repeated use over time and right knee pain on movement, swelling with decreased mobility, weakness, and soreness (see February 2022 VA examination reports) are medically consistent with the symptomatology reported by the Veteran above. (b) are proximately due to the Veteran's left knee disability, to include any associated altered gait. (c) have been aggravated (worsened) by the Veteran's left knee disability, to include any associated altered gait. In addressing sub-parts (b) and (c) of this question, the examiner should discuss the Veteran's report that he feels "lopsided" due to his left knee disability and that his gait is altered. In addressing secondary service connection, please note that the left knee disability need not be diagnosed or service-connected at the time the secondary condition (here, back and/or right knee) is incurred to establish secondary service connection, and reliance on this fact will render any secondary opinion inadequate. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 5. Then obtain an addendum opinion addressing the etiology of the Veteran's gastrointestinal disorder. The claims file should be made available to and be reviewed by the examiner. No additional examination is necessary, unless the examiner determines otherwise. The examiner should opine as to whether it is at least as likely as not (50 percent probability or higher) that the Veteran's gastrointestinal disorders (diagnosed as IBS and duodenitis): (a) had their onset during or are otherwise etiologically related to the Veteran's service, to include documented nausea in service (diagnosed as gastroenteritis) and his report of hypomotility of bowel movements, as well as any environmental exposures reported by the Veteran (such as burn pits, jet fuel, etc.). See June 2011 and September 2012 STRs. The examiner is advised that the Veteran has competently and credibly reported nausea since his return from Afghanistan. See e.g., April 2015 gastroenterology consultation (The Veteran reported abdominal pain for the past three years since his return from Afghanistan.). The examiner should discuss this in the opinion. Any opinion that relies solely on the presence or absence of reported symptoms in the Veteran's STRs will be returned as inadequate. (b) is proximately due to his service-connected PTSD, to include any medications prescribed for the treatment of his psychiatric disorder, to specifically include trazodone and mirtazapine; or (c) has been aggravated (worsened) by his service-connected PTSD, to include any medications prescribed for the treatment of his psychiatric disorder, to specifically include trazodone and mirtazapine. In addressing secondary service connection, please note that the PTSD need not be diagnosed or service-connected at the time the gastrointestinal disorder is incurred to establish secondary service connection, and reliance on this fact will render any secondary opinion inadequate. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 6. Then obtain an addendum opinion addressing the severity of the Veteran's left knee disability during a flare-up. No additional examination is necessary, unless the examiner determines otherwise. The examiner is asked to address the following: Considering the Veteran's reported history, please provide an opinion describing functional impairment of the Veteran's left knee during flare-ups and after repetitive use over time, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, and report such impairment in terms of additional degrees of limitation of motion (without taking into account the Veteran's use of pain medication). If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. If an examination is needed for this determination, one should be scheduled. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Forde, 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.