LUMBOSACRAL STRAIN

Summary

The veteran, who served in the U.S. Army from January 1972 to January 1974, appeals the denial of service connection for lumbosacral strain and right hip strain, claiming they are secondary to his service-connected right knee osteoarthritis. The case has a lengthy procedural history involving multiple remands and appeals to the Court of Appeals for Veterans Claims. The Board found the evidence in relative equipoise regarding the secondary service connection claims for lumbosacral and right hip strain. While a June 2019 VA opinion suggested a link, finding the service-connected knee disability aggravated these conditions, other VA opinions from October 2017 and November 2020 were negative or inadequate, citing lack of medical literature support, speculation, or pre-existing conditions. The Board found the November 2020 opinion inadequate due to contradictions with other evidence and lack of probative value. Ultimately, resolving doubt in the veteran's favor, the Board granted service connection for lumbosacral strain and right hip strain as secondary to the right knee condition. However, the appeal for increased ratings for the right knee condition and for TDIU prior to August 26, 2013, were remanded for further development. The remand requires a new VA examination to provide specific estimates of functional loss and range of motion for the right knee during flare-ups and on repetitive use across different periods, as prior examinations were deemed inadequate.

Rationale

Evidence in relative equipoise; Resolving doubt in veteran's favor; Secondary to service-connected right knee condition

Full Decision Text

Citation Nr: 24032452
Decision Date: 10/31/24	Archive Date: 10/31/24

DOCKET NO. 09-34 285
DATE: October 31, 2024

ORDER

Entitlement to service connection for lumbosacral strain as due to service-connected right knee osteoarthritis with meniscectomy residuals and status post knee replacement is granted. 

Entitlement to service connection for right hip strain as due to service-connected right knee osteoarthritis with meniscectomy residuals and status post knee replacement is granted. 

REMANDED

Entitlement to a disability rating greater than 10 percent from June 23, 2008, to November 30, 2009, greater than 10 percent from April 1, 2010, to August 25, 2013, and greater than 30 percent from October 1, 2014, for right knee osteoarthritis with meniscectomy residuals and status post knee replacement is remanded. 

Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 26, 2013, is remanded. 

FINDINGS OF FACT

1.  The record evidence is in relative equipoise as to whether the Veteran's service-connected right knee osteoarthritis with meniscectomy residuals and status post knee replacement caused or contributed to his current lumbosacral strain.

2.  The record evidence is in relative equipoise as to whether the Veteran's service-connected right knee osteoarthritis with meniscectomy residuals and status post knee replacement caused or contributed to his current right hip strain.

CONCLUSIONS OF LAW

1.  The criteria for service connection for lumbosacral strain as due to service-connected right knee osteoarthritis with meniscectomy residuals and status post knee replacement have been met.  38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310.

2.  The criteria for service connection for right hip strain as due to service-connected right knee osteoarthritis with meniscectomy residuals and status post knee replacement have been met.  38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active U.S. Army service from January 1972 to January 1974.  

This Legacy appeal has a long and complicated procedural history.  It comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  

A Travel Board hearing was held in April 2011 before the undersigned Acting Veterans Law Judge and a copy of the hearing transcript has been added to the record. 

The Board denied entitlement to increased ratings for right knee osteoarthritis with meniscectomy residuals and status post knee replacement and remanded a TDIU claim in a June 2017 Legacy decision which outlined the prior procedural history of this appeal in detail.  The Veteran, through his attorney, and VA's Office of General Counsel appealed the Board's June 2017 denial of increased ratings for right knee osteoarthritis with meniscectomy residuals and status post knee replacement by filing a Joint Motion for Partial Remand (Joint Motion) with the United States Court of Appeals for Veterans Claims (Court).  The Court granted the Joint Motion in June 2018, vacating and remanding that part of Board's June 2017 decision which denied increased ratings for right knee osteoarthritis with meniscectomy residuals and status post knee replacement.

The Board notes that, in a separate appeal stream, the Veteran perfected a Legacy appeal for claims of service connection for a low back disability and for a right hip disability in November 2017.

The RO subsequently granted TDIU effective August 26, 2013, in a June 2018 Legacy rating decision.    

In January and November 2019, the Board essentially consolidated the Veteran's Legacy appeals and remanded all of the currently appealed claims to the RO for additional development.  

Entitlement to service connection for lumbosacral strain and for right hip strain, each as due to service-connected right knee osteoarthritis with meniscectomy residuals and status post knee replacement

The Board finds that the evidence is in relative equipoise on the issues of whether service connection for lumbosacral strain
 for claims of service connection for a low back disability and for a right hip disability in November 2017.

The RO subsequently granted TDIU effective August 26, 2013, in a June 2018 Legacy rating decision.    

In January and November 2019, the Board essentially consolidated the Veteran's Legacy appeals and remanded all of the currently appealed claims to the RO for additional development.  

Entitlement to service connection for lumbosacral strain and for right hip strain, each as due to service-connected right knee osteoarthritis with meniscectomy residuals and status post knee replacement

The Board finds that the evidence is in relative equipoise on the issues of whether service connection for lumbosacral strain and for right hip strain, each as due to service-connected right knee osteoarthritis with meniscectomy residuals and status post knee replacement, is warranted.  In other words, there is evidence which both supports and goes against the Veteran's claims.  He essentially contends that he incurred lumbosacral strain and right hip strain during active service and experienced continuous post-service disability.  He alternatively contends that his service-connected right knee osteoarthritis with meniscectomy residuals and status post knee replacement ("right knee disability") caused or contributed to his current lumbosacral strain and right hip strain.  It is undisputed that the Veteran was diagnosed as having right hip strain and lumbosacral strain following VA examinations in October 2017.  

On the one hand, following the October 2017 VA examination, the VA examiner opined that it was less likely than not that either the Veteran's right hip strain or lumbosacral strain is secondary to the service-connected right knee disability.  The rationale for this opinion was that these disabilities are "a separate entity entirely from the service connected [right knee] condition."  The rationale also was that a review of relevant "medical literature does not support a medical relationship."

Pursuant to the Board's January 2019 remand instructions, the AOJ secured an addendum opinion regarding the etiology of the Veteran's lumbosacral strain and right hip strain in May 2019.  A VA examiner opined in May 2019 that it is less likely than not that the Veteran's service-connected right knee disability caused or aggravated either his lumbosacral strain or his right hip strain.  The rationale for this opinion was "it would be mere speculation to say that the service connected knee disability is the sole cause of the Veteran's right hip and lower back condition as a result of an altered gait and exclude other causes such as aging."

The Board acknowledges that the May 2019 VA examiner stated that she could not provide an opinion concerning the etiology of the Veteran's lumbosacral strain and right hip strain without resorting to mere speculation.  The Court has held that medical opinions using the "mere speculation" language, without more, generally are disfavored because they are inconclusive as to the origin of a disability.  See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993).  The Court has explained that opinions which contain the "mere speculation" language, without more, amount to 'nonevidence' neither for nor against the claim because service connection may not be based on speculation or remote possibility.  See Bloom v. West, 12 Vet. App. 185 (1999).  Having reviewed the May 2019 VA clinician's opinion concerning the etiology of the Veteran's current lumbosacral strain and right hip strain, the Board finds that this opinion amounts to non-evidence neither for nor against the currently appealed claims.  See Jones v. Shinseki, 23 Vet. App. 382 (2010) (discussing adequacy of medical opinion evidence).

On the other hand, a different VA clinician opined in June 2019 that it was at least as likely as not that the Veteran's service-connected right knee disability aggravated both his lumbosacral strain and his right hip strain.  The rationale for this opinion was the history of worsening symptoms for both claimed conditions and objective evidence indicating that the service-connected right knee disability significantly altered the Veteran's gait which in turn exacerbated both the lumbosacral strain and right hip strain.  

Following the Board's November 2019 remand, the AOJ secured additional addendum opinions in November 2020 addressing the etiology of the Veteran's lumbosacral strain and right hip strain.  The November 2020 VA clinician opined that it is less likely than not that either the lumbosacral strain or right hip strain are secondary to
's service-connected right knee disability aggravated both his lumbosacral strain and his right hip strain.  The rationale for this opinion was the history of worsening symptoms for both claimed conditions and objective evidence indicating that the service-connected right knee disability significantly altered the Veteran's gait which in turn exacerbated both the lumbosacral strain and right hip strain.  

Following the Board's November 2019 remand, the AOJ secured additional addendum opinions in November 2020 addressing the etiology of the Veteran's lumbosacral strain and right hip strain.  The November 2020 VA clinician opined that it is less likely than not that either the lumbosacral strain or right hip strain are secondary to the service-connected right knee disability.  The rationale for these opinions was that both lumbosacral strain and right hip strain existed prior to active service.  The rationale also was that there was no documented change in the treatment for either lumbosacral strain or right hip strain.

The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion.  Wilson v. Derwinski, 2 Vet. App. 614 (1992).  A medical opinion based upon an inaccurate factual premise is not probative.  Reonal v. Brown, 5 Vet. App. 458, 461 (1993).  A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).  The Court also has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom, 12 Vet. App. at 187.  Thus, a medical opinion is inadequate when it is unsupported by clinical evidence.  Black v. Brown, 5 Vet. App. 177, 180 (1995).  

Having reviewed the November 2020 VA medical nexus opinion, the Board finds that this evidence is inadequate for VA adjudication purposes.  Specifically, the November 2020 VA examiner's statement that the Veteran's lumbosacral strain and right hip strain existed prior to active service is contradicted by the record evidence which does not demonstrate that either of these disabilities existed prior to active service.  Furthermore, the November 2020 VA examiner's statement that there was no documented change in the treatment for either the lumbosacral strain or right hip strain is contrary to the findings of the June 2019 VA examiner.  Thus, the Board finds that the November 2020 VA medical nexus opinion is not probative on the issues of whether the Veteran's service-connected right knee disability caused or contributed to his lumbosacral strain or his right hip strain.  

The Board finds that judicial review is frustrated here by the AOJ's apparent inability to obtain medical nexus opinions concerning the etiology of the Veteran's lumbosacral strain and/or right hip strain likely to survive judicial review.  The Board notes in this regard that compliance with its remand directives is not discretionary.  Nevertheless, given the length of time which has elapsed since the Veteran perfected a timely appeal, the Board declines to remand this appeal to the AOJ yet again.  As noted elsewhere, there is evidence which both supports (June 2019 VA medical nexus opinion) and goes against (October 2017 VA medical nexus opinion) the Veteran's currently appealed claims.  In other words, the evidence is in relative equipoise.  See 38 C.F.R. § 3.102.  In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for lumbosacral strain and for right hip strain, each as due to service-connected right knee osteoarthritis with meniscectomy residuals and status post knee replacement, is warranted.

REASONS FOR REMAND

The Board acknowledges that this appeal has been remanded repeatedly, most recently in November 2019.  Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this appeal again, additional development is required before the underlying claims for an increased rating for a right knee disability and for a TDIU prior to August 26, 2013, can be adjudicated on the merits.  Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law").

1. Entitlement to a disability rating greater than 10 percent from June 23
 recently in November 2019.  Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this appeal again, additional development is required before the underlying claims for an increased rating for a right knee disability and for a TDIU prior to August 26, 2013, can be adjudicated on the merits.  Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law").

1. Entitlement to a disability rating greater than 10 percent from June 23, 2008, to November 30, 2009, greater than 10 percent from April 1, 2010, to August 25, 2013, and greater than 30 percent from October 1, 2014, for right knee osteoarthritis with meniscectomy residuals and status post knee replacement

The Veteran and his attorney essentially contend that his service-connected right knee osteoarthritis with meniscectomy residuals and status post knee replacement ("right knee disability") is more disabling than currently evaluated during each of the time periods at issue in this appeal.  In the June 2018 Joint Motion, the Court faulted the Board's reliance on prior VA examinations dated in August 2008, July 2010, and in December 2014 which did not indicate where the Veteran's right knee pain began on range of motion and did not address whether the Veteran experienced additional functional loss during flare-ups of symptomatology and/or following repeated use, citing Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017).  Because the Board is bound by the Court's Order granting the Joint Motion, it finds that VA examinations dated in August 2008, July 2010, and in December 2014 are inadequate for purposes of adjudicating the Veteran's increased rating claim for a right knee disability.  

Following the Court's Order granting the Joint Motion, the Board remanded the Veteran's increased rating claim for a right knee disability for a new examination in January 2019.  At a May 2019 VA knee examination, the Veteran endorsed experiencing flare-ups of additional symptomatology and also reported that he is unable to stand or walk for long periods of time as due to the right knee condition.  Unfortunately, the May 2019 VA examiner declined to estimate whether the Veteran would experience additional functional loss during a flare-up or following repeated use.   This examiner merely stated instead that she has "no basis to offer additional losses of function or motion during a flare up."  

Unfortunately, the Board cannot rely on the May 2019 VA examination to adjudicate the increased rating claim for right knee osteoarthritis with meniscectomy residuals and status post knee replacement.  The May 2019 VA examiner did not provide the requested estimates regarding functional loss during flare-ups, despite clear evidence suggesting that the Veteran experiences flare-ups which in turn cause additional functional impairment.  It is not clear to the Board why this examiner did not provide this information as it is a routine matter in VA examinations for musculoskeletal disabilities and specifically was requested by the AOJ here.  Having reviewed the May 2019 VA examination, the Board also concludes that this examination is inadequate for VA adjudication purposes.  

To date, the AOJ has not complied with the prior remand directives and obtained a VA examination concerning the current severity of the Veteran's service-connected right knee disability sufficient to pass judicial scrutiny.  The reasons for the AOJ's inability to obtain a sufficient VA examination are not clear from a review of the record evidence.  In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders.  The Board again notes that compliance with its remand directives is not discretionary.  It was error for the AOJ to re-certify this appeal to the Board without complying with the prior remand instructions.  Given this error, another remand is required.

2. Entitlement to TDIU prior to August 26, 2013 is remanded.

The Veteran and his attorney finally contend that he is entitled to a TDIU prior to August 26, 2013.  The Board finds that adjudication of the increased rating claim for a right knee disability on remand by the RO likely will impact adjudication of the TDIU claim prior to August 26, 2013.  Thus, these issues
.  The Board again notes that compliance with its remand directives is not discretionary.  It was error for the AOJ to re-certify this appeal to the Board without complying with the prior remand instructions.  Given this error, another remand is required.

2. Entitlement to TDIU prior to August 26, 2013 is remanded.

The Veteran and his attorney finally contend that he is entitled to a TDIU prior to August 26, 2013.  The Board finds that adjudication of the increased rating claim for a right knee disability on remand by the RO likely will impact adjudication of the TDIU claim prior to August 26, 2013.  Thus, these issues are inextricably intertwined and adjudication of the TDIU claim prior to August 26, 2013, must be deferred again.  See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered).

The matters are REMANDED for the following action:

1.  Forward the claims file and a copy of this REMAND to an appropriate clinician for an opinion concerning the severity of the Veteran's service right knee osteoarthritis with meniscectomy residuals and status post knee replacement.  This opinion should be provided by a clinician who has not provided an opinion already.  The decision on whether the Veteran should report for examination is left to the discretion of the clinician asked to provide the requested opinion(s). 

Based on a review of the claims file and the results of the Veteran's examination (if held), the clinician is asked to estimate the Veteran's active motion, passive motion, and pain on weight bearing and on non-weight bearing for the right knee during the entire appeal period.  The clinician next is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limit functional ability during flare-ups of pain or on repetitive use.  If so, then the clinician must estimate the right knee range of motion during flare-ups of pain or on repetitive use.  The examiner also must provide a retrospective opinion as to any additional functional loss during flare-ups of right knee pain during the appeal period and estimate that functional loss in terms of degrees of range of motion lost during a flare-up of pain. 

The clinician is advised to provide these estimates for the following periods of time: from June 23, 2008, to November 30, 2009, from April 1, 2010, to August 25, 2013, and since October 1, 2014.  The clinician also is advised not to review or rely upon any prior opinions in the claims file in preparing his or her own opinion(s).

If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain whether this 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 he or she does not have the knowledge or training.  

2.  Review the VA examiner's opinion(s), once obtained, and determine if it complies substantially with this REMAND.  If not, please take appropriate corrective action.  See Stegall v. West, 11 Vet. App. 268 (1998).

3.  Thereafter, readjudicate the appeal.

 

 

MICHAEL T. OSBORNE

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Christopher M. Collins, 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.