Citation Nr: 1729863 Decision Date: 07/27/17 Archive Date: 08/04/17 DOCKET NO. 06-34 687 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected leg disabilities. REPRESENTATION Appellant represented by: Harold Hoffman, Attorney at Law ATTORNEY FOR THE BOARD M. Nye, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to February 1972. This matter comes to the Board of Veterans' Appeals (Board) from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In October 2012, the Board issued a decision denying service connection for a lumbar spine disorder. The Veteran appealed that ruling to the United States Court of Appeals for Veterans Claims (Court). In June 2013, the Court granted the joint motion of the parties to vacate the Board's October 2012 denial of the Veteran's claim and to return this appeal to the Board for further proceedings. In July 2014, the Board remanded the issue to the Agency of Original Jurisdiction (AOJ) to obtain a new medical opinion. Although the Board regrets the need for further delay, for the reasons below, the appeal must be REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran has been diagnosed with lumbar disc herniation status post L4-5 laminectomy and discectomy with left lower extremity radiculopathy. In his written statements, the Veteran attributes this condition to injuries he sustained an automobile accident which occurred in 1970, during his active duty service. Alternatively, he claims that he developed his lumbar spine disability as the secondary result of his service-connected residuals of a fracture of the left tibia and fibula with neuroma. According to the Veteran, his service-connected leg disabilities altered his gait, gradually causing him to develop his current lumbar spine disability. When it denied the claim in October 2012, the Board relied on a VA medical opinion, dated March 2012, in which the examiner concluded that it was less likely than not that the Veteran's service-connected leg disabilities caused the lumbar spine disability. According to the examiner, a causal relationship was unlikely because contemporary medical records indicate that the Veteran's tibia and fibula fractures healed within one year of the in-service injury. In the examiner's opinion, the relatively rapid healing of these injuries made it "unlikely that any altered gait mechanics from . . . that injury in 1970 would have significantly contributed to [the Veteran's] current back condition." In its decision, the Board acknowledged that the Veteran was competent to testify that he experienced back pain and had an unusual gait. Emphasizing a November 1971 Physical Evaluation Board report, which indicated that the Veteran walked with a normal gait, the Board rejected these statements as being inconsistent with the contemporaneous medical evidence. In their joint motion for remand (JMR), the parties agreed that the March 2012 VA medical opinion was inadequate. According to the JMR, the Board erred in relying on the examiner's conclusion, in part because the examiner's statement that the left leg fractures contributed, albeit not "significantly", to his current back condition, suggested the possibility that his service-connected leg fractures could have aggravated the lumbar spine disability. The JMR was critical of the Board's finding that tibia and fibula fractures healed within a year of the accident, because the Board failed to discuss a November 2006 x-ray report indicating a slight deformity of the fracture site and malunion of the left tibia and fibula. This evidence, which indicated the existence of current residuals of the in-service leg fracture, undermined the Board's finding that the Veteran's leg injuries had healed. Finally, the JMR suggested that the Board failed to address certain evidence indicating an unusual gait - particularly the Veteran's January 1972 testimony before the Physical Evaluation Board. After the Court granted the JMR, the Board attempted to clarify these uncertainties in the medical evidence by remanding the case to the AOJ with instructions to obtain a new medical opinion. The requested opinion was obtained in May 2016 and, according to the examiner, it was less likely than not that the Veteran's lumbar spine disorder was the result of, or was aggravated by, residuals of the service-connected leg fractures. According to the May 2016 addendum report, there is more than one likely cause of the Veteran's current lumbar spine disorder. The examiner wrote that the lumbar spine disorder could be the result of a documented post-service workplace injury, which happened in 1992. A subsequent postoperative infection and a second motor vehicle accident could also have caused the current disability. Unlike the March 2012 report, the May 2016 report did address the tibia and fibula x-rays taken in the 2006 and 2007. The examiner explained that the x-ray findings were consistent with remote healed fractures. The osseous deformity noted in the x-ray reports, the examiner continued, was within the 10 degree "acceptable tolerance in both the sagittal and coronal planes. The 2006 and 2007 reports document [that] the fracture is healed." Like the March 2012 report, the addendum report emphasized that, according to service treatment records, "the fractures healed within the same year of injury." The May 2016 addendum opinion has repaired many of the inadequacies identified in the parties' June 2013 JMR. The opinion was also helpful in identifying and describing multiple possible causes for the Veteran's lumbar spine disability. Unfortunately, the examiner did not directly comment on whether gait changes associated with in-service leg fractures is one of those possible causes. The examiner described the bone deformity identified in the 2006 x-ray as "within the acceptable tolerances within the orthopedic literature." But it is unclear whether this finding amounts to medical evidence which conclusively disproves earlier lay statements describing gait disturbance or if, instead, it means that any gait disturbance which the Veteran did experience was so insignificant that it is less likely than not that gait disturbance caused or aggravated the current lumbar spine disorder. If either of these interpretations is correct, it is likely that the Board will be compelled to deny service connection for a lumbar spine disability. If, on the other hand, the examiner simply neglected to address the possibility that gait disturbance caused or aggravated the lumbar spine disability - and if gait disturbance could indeed be among what the examiner called "multiple etiologies that could account for [the Veteran's] back condition" - then the Veteran's claim could be successful. There is conflicting evidence on the issue of gait disturbance. It is true that, according to a November 1971 Physical Evaluation Board report, the Veteran was walking with a normal gait at that time. Relatively recent VA treatment records describe the Veteran's gait as normal in December 2013, April 2015 and April 2016. A private treatment record, dated December 2008, described "a fairly good gait." However, as the JMR explained, in January 1972, the Veteran testified at a hearing before the Physical Evaluation Board. According to the transcript of that hearing, the Veteran was asked about medical records describing his gait as normal and he responded that that this was not always true. He said that, when he walked downhill he walks with a limp. He also said that he needed to put his feet down gently when walking on hard ground. According to a March 1992 medical record, the Veteran "is able to walk without assistance, but has an antalgic gait on the left." To support his claim, the Veteran submitted a letter from his chiropractor, dated December 2007, which described the Veteran's lumbar spine disability as the result of the 1970 in-service automobile accident. The chiropractor's letter also described "gait disturbances causing overload in an asymmetric way", although it is not clear from the letter whether the chiropractor believed that gait disturbances caused the Veteran's back condition or only degenerative arthritis in the right knee, which is also mentioned in the letter. The author of a February 2011 VA examination report also provided an opinion indicating that it was at least as likely as not that the current lumbar spine disability was the result of the 1970 accident. When it denied the lumbar spine claim in October 2012, the Board rejected the Veteran's statements as incredible on the grounds that he did not make any statements about back pain until after he applied for service connection for a lumbar spine disability. But it is clear from January 1972 hearing transcript that this is not true of the Veteran's statements describing gait disturbance. The Board further rejected the conclusions of the December 2007 chiropractor's letter and the February 2011 VA examination report, partly because they failed to discuss the Veteran's post-service workplace injury in 1992, but also because their opinions were based on the Veteran's lay statements. Under these circumstances, the Board will not make a new credibility determination concerning the Veteran's statements until, on remand, the AOJ obtains a new medical opinion which addresses the probability that gait disturbance associated with service-connected leg disabilities caused or aggravated his lumbar spine disability. The new opinion should also address the December 2007 chiropractor's letter and the February 2011 VA examination report. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims folder copies of all records of the Veteran's VA treatment since April 2016. 2. Send the claims file, including any newly obtained treatment records, to the VA examiner who prepared the May 2016 VA medical opinion for a second addendum opinion clarifying the nature and etiology of the Veteran's claimed lumbar spine disability. If the May 2016 examiner is unavailable for any reason, the requested opinion should be obtained from another qualified person. If the requested opinion cannot be provided without a new examination, the necessary examination should be arranged. In his May 2016 opinion, the examiner indicated that there were "multiple etiologies that could account for [the Veteran's] back condition" including a 1992 workplace injury, a postoperative infection and a subsequent motor vehicle accident. After reviewing the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that a claimed change in the Veteran's gait associated with service-connected left leg fractures is one of the etiologies that could account for the current lumbar spine disability. If the examiner concludes that the lumbar spine disability was aggravated by gait changes associated with a service-connected leg disability, the examiner should comment on when the onset of aggravation took place and whether the claims file contains sufficient medical evidence created before the onset of aggravation to establish a baseline of the level of severity of lumbar spine disability. If a baseline is established, the examiner should comment on how much the lumbar spine disability has worsened in severity, if at all, from the time the baseline was established to the current level of severity. A complete rationale for any opinion should be provided. In explaining his or her opinion, the examiner should clarify the statement in the May 2016 medical opinion indicating that bone deformities of the tibia and fibula documented in x-ray reports in 2006 and 2007 were "within the acceptable tolerances within the orthopedic literature." Is this finding medically consistent with the Veteran's statements concerning gait disturbance? The examiner is asked to discuss the Veteran's January 1972 hearing testimony indicating that his gait was not always normal and that he walked with a limp going downhill as well as a March 1992 medical record, the Veteran "is able to walk without assistance, but has an antalgic gait on the left." The examiner should also consider the evidence describing the Veteran as walking with a normal gait, including the November 1971 Physical Evaluation Board report and VA treatment records describe the Veteran's gait as normal in December 2013, April 2015 and April 2016. In his or her rationale, the examiner should also address the opinions expressed in the December 2007 letter from the Veteran's chiropractor, the February 2011 VA examination report, as well as the medical records concerning the Veteran's post-service 1992 workplace accident. 3. The AOJ must ensure that the addendum opinion complies with these instructions. If the report is insufficient, the AOJ should return the examiner's report for any necessary corrective action. 4. After the above development is complete, to the extent possible, the AOJ should readjudicate the issues on appeal. If any requested benefit is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and be given an opportunity to respond before the case is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ DAVID L. WIGHT 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) (2016).