Citation Nr: 1624934 Decision Date: 06/21/16 Archive Date: 07/11/16 DOCKET NO. 12-17 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for a right ankle disorder. REPRESENTATION Veteran represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD D.M. Casula, Counsel INTRODUCTION The Veteran had active service from October 1973 to October 1977. This matter comes before the Board of Veterans' Appeals (Board) from a July 2011 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA). This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA electronic claims file. Virtual VA contains additional VA treatment records and documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal. REMAND Remand is required to obtain compliance with the December 2013 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In December 2013, the Board remanded this matter to obtain records from the Social Security Administration (SSA) and medical opinions, with rationale, to determine whether it is at least as likely as not (a 50 % or higher probability) that the Veteran's back disorder and right ankle disorder were caused or aggravated by his service-connected left ankle disability. Records from the SSA were obtained, and in November 2014, VA examinations and opinions were obtained, however, as explained below, these opinions are not adequate; thus there was not substantial compliance with the December 2013 remand directives, and another remand is warranted. The Veteran contends he has back and right ankle disorders that are secondary to his service-connected degenerative joint disease of the left ankle. As noted above, in December 2013, the Board remanded this matter to obtain medical opinions, with rationale. For reasons set forth below, however, the Board finds these opinions to be inadequate. On a VA back examination in November 2014, the diagnoses included degenerative arthritis of the spine and lumbar spondylosis. The examiner opined that the Veteran's back disorder was less likely than not incurred in or caused by the claimed in-service injury, event or illness. For rationale, the examiner noted that the Veteran had degenerative arthritis of the lumbar spine, a condition of aging, chronic wear and tear, and a genetic tendency to lose fluid in the disc spaces, but found that this condition had no relationship to his service-connected left ankle disability, which was arthritic in nature and caused no biomechanical abnormality that could remotely cause arthritis of the back. The examiner then went on to respond "yes" to the question of whether a determination could be made as to the baseline level of severity of the claimed condition/diagnosis based upon medical evidence available prior to aggravation or the earliest medical evidence following aggravation by the service-connected condition. The examiner described the baseline level of severity of the back as degenerative arthritis with chronic back pain, and noted that the baseline date was November 18, 2014. The examiner then opined that the current severity of the claimed condition/diagnosis was not greater than the baseline, noting that the Veteran had surgery and is essentially back to baseline. The Board finds that the rationale provided by the examiner does not specifically address the issue of whether the back disorder was aggravated by his service-connected left ankle disability. The examiner, however, addressed whether the current severity of the back disorder was greater than the baseline level of severity prior to aggravation. Thus, it is unclear whether the Veteran's back disorder has been aggravated (permanently worsened) by his service-connected left ankle disability. In view of the foregoing, another VA medical opinion, with adequate supporting rationale, must be obtained. Additionally, on a VA ankle condition examination dated in November 2014, the examiner noted there was no current diagnosis of any claimed right ankle disorder, but then diagnosed a nerve compression syndrome, which was not an ankle condition. This opinion suggests, but does not address, whether the nerve compression syndrome specifically affects the nerves of the right ankle. Thus, another VA medical opinion, with adequate supporting rationale, must be obtained. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of his back and right ankle disorders from the VA examiner who conducted the 2014 examinations. If that examiner is unavailable, a similarly qualified examiner may provide the opinions. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 % or higher probability) that the Veteran's back disorder was aggravated (permanently increased in severity beyond normal course) by his service-connected left ankle disability. Second, the examiner must also determine whether the Veteran has a right ankle disorder, to include whether the nerve compression syndrome affects the nerves of the right ankle, and, if so whether any such ankle disorder was caused or aggravated (permanently increased in severity beyond normal course) by his service-connected left ankle disability. If, and only if, it is determined that the back disorder and/or a right ankle disorder was aggravated by the left ankle disability, the examiner should quantify, if possible, the degree to which the back and/or right ankle disorder is due to such aggravation. 4. Review the opinion report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).