Citation Nr: 22051187 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 19-03 164A DATE: September 8, 2022 REMANDED The claim for entitlement to a rating greater than 30 percent for left knee prosthetic replacement (previously rated as post-traumatic osteoarthritis and instability) is remanded. The claim for entitlement to service connection for a back disability, including as secondary to the service-connected left knee disability is remanded. REASONS FOR REMAND The Veteran served in the U.S. Marine Corps on active service from September 1981 to October 1983. This matter comes to the Board from a February 2016 rating decision rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned Veteran's Law Judge in July 2022. The transcript has been associated with the claims file. The Veteran testified that since his most recent VA examination in 2016 for his left knee he has had additional surgery and was involved in a motor vehicle accident (MVA), in which he broke his left femur. He was treated for injuries sustained in the MVA at a private hospital before being transferred to the VA for physical therapy. In addition, the Veteran testified his left leg was found to be shorter than his right leg by an inch, requiring orthotic inserts. He attributes this finding to his service-connected left knee disability which, in turn, he argues, has caused his back disorder. The Veteran testified his private treating physician has provided him a statement indicating his back is the result of his service-connected left knee disability. The Veteran has provided VA with a number of private medical records. Among them are documents from the Veteran's insurance company on behalf of Medicaid, including July 2022 computed tomography (CT) results showing the shortened left lower limb, as compared to the right, described as being congenital. The statement from the Veteran's physician is not among these records. The Veteran's testimony and newly received medical records show the 2016 VA examination provides an inadequate basis upon which to adjudicate both the claim for increased rating for the service-connected left knee disability and for service-connection for the lower back disability, for the following reasons. First, the 2016 VA examination was conducted without pertinent medical evidence concerning the Veteran's service-connected left knee disability, including the intervening MVA. Second, the 2022 CT results indicate the Veteran's left leg length discrepancy is congenital; but this in contradiction to service treatment records (STRs) which showed no abnormalities at entrance to active service. Moreover, STRs show the Veteran underwent extensive surgery to reconstruct his left knee during active service. Finally, missing from the claims file are private medical records concerning treatment for the intervening MVA and for the Veteran's back disability. All these matters must be resolved and the Veteran should be afforded a new examination to obtained an accurate understanding of the Veteran's service-connected left knee disability and opinion concerning the nature and etiology of the claimed back disability. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Accordingly, these matters are REMANDED for the following action: 1. Ask the Veteran to identify and provide release of private medical records for the treatment he received for his left knee as the result of the MVA he described in his 2022 hearing, and for his back. Request the representative's assistance where appropriate. 2. Obtain any other additional relevant VA and private treatment records of which VA has knowledge that are not already of record. Request the representative's assistance where appropriate. 3. Inform the Veteran that the statement concerning the etiology of his back disability from his private treating physician was not among those medical records submitted into the record after his 2022 testimony, and ask him to resubmit the statement. In the alternative, inform the Veteran he may submit a statement from his physician as to what he/she believes is the cause of his claimed back disability, including an appropriate Disability Benefits Questionnaire (DBQ). Provide the Veteran with the appropriate DBQ form, and request the representative's assistance where appropriate. 4. Schedule the Veteran for VA examination with the appropriate clinician to determine the current severity of his service-connected left knee disability, post knee replacement. The claims folder must be reviewed in conjunction with the examination, including the Veteran's 2022 Board hearing testimony. The examiner is asked to determine the following: (a.) is it as likely as not (likelihood is at least approximately balanced or nearly equal if not higher) that the Veteran's current left knee symptomatology is the result of the service-connected left knee disability rather than attributable to the post-service MVA? If the origin of the service-connected left knee symptomatology cannot be separated from any symptomatology that may be the result of the MVA, that should be reported as well. The examiner is asked to provide a complete rationale to support the opinion. The examiner must address the evidence addressed above, including the Veteran's 2022 testimony, and any other relevant evidence received as a result of this remand. If the examiner is unable to provide the requested opinion without resorting to speculation, the examiner should state whether the inability is due to insufficient testing by the examiner and/or his or her lack of expertise, or due to a limitation of the medical community at large. 5. Schedule the Veteran for VA examination with the appropriate clinician to determine the nature and etiology of the claimed back disability. The claims folder must be reviewed in conjunction with the examination, including the Veteran's 2022 testimony. After records review and examination, the examiner should discuss any spine pathology identified during examination and the pendency of this claim, and respond to the following questions: (a.) is it at least as likely as not (likelihood is at least approximately balanced or nearly equal) that any spine pathology to include dextroscoliosis with diffuse degenerative spondylosis and mild stenosis at L4-L5 is caused or aggravated by the service-connected left knee disability as opposed to the left leg length discrepancy. (b.) if it is determined that the service-connected back disorder is the result of left leg length discrepancy, determine whether such left leg length discrepancy: 1. is a congenital disease or defect. The examiner is advised that for VA compensation purposes, defects are static in nature and incapable of improvement or deterioration, whereas diseases are capable of progression. 2. if it is determined that the left leg length discrepancy is a congenital disease, whether it is at least as likely as not that the disease had onset in service; or, if it pre-existed service, the examiner must opine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal) that such disease has been aggravated, i.e. increased in severity beyond the natural progress of the disorder by active service, to include the inservice MVA and left knee reconstruction during active service. 3. if it is determined that the left leg discrepancy is a congenital defect, the examiner must opine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal) that any left lower extremity disability was superimposed on the congenital defect during active service to include as a result of the inservice MVA and left knee reconstruction and resulted in additional disability. 4. If the origin of the left leg length discrepancy cannot be separated from the current service-connected left knee disability, that should be reported as well. (c.) In the alternative, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any spine pathology to include dextroscoliosis with diffuse degenerative spondylosis and mild stenosis at L4-L5 had its onset during or is in any other way the result of any incident of active service? The examiner is asked to provide a complete rationale to support the opinion. The examiner must address the evidence addressed above, including the Veteran's 2022 testimony, the 2022 CT results, and any other relevant evidence received as a result of this remand. (Continued on the next page) 6. After completing the above, and any other development as may be indicated, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case with an appropriate period of time for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bakke, Lila J. 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.