Citation Nr: 1803707 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 10-46 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for lumbar spine degenerative joint disease (DJD) including as secondary to service-connected left hip and bilateral knee disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Zimmerman, Associate Counsel INTRODUCTION The Veteran served on active duty in the Navy from July 1974 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. The matter was previously remanded for further development and to provide the Veteran with a VA examination and opinion addressing the issue of secondary service connection. While the Board acknowledges and regrets the further delay and inconvenience to the Veteran, a remand is necessary to provide an adequate examination and opinion as to secondary service connection. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. A September 2017 remand order required an examiner to opine as to whether or not the Veteran suffers or suffered from an antalgic gait caused by his service connected disabilities, and, if so, whether or not this antalgic gait caused or aggravated the Veteran's lumbar DJD. If the examiner could not provide the requested opinion without resorting to mere speculation, the examiner was ordered to thoroughly explain the factors that prevent him or her from offering the opinion. An October 2017 VA examination report concluded that, at least as likely as not, the Veteran's service-connected hip and knee pathology contributed to his antalgic gait. The examiner then stated that "whether this has caused his back pain is open to mere conjecture." This statement fails to address the issue of possible aggravation of the Veteran's lumbar DJD by his antalgic gait as required by the September 2017 remand order. It is therefore inadequate and a remand is warranted to obtain an addendum opinion. In order to avoid the appearance of bias, the Board suggests that an examiner other than the one who performed the October 2017 examination provide this opinion. Accordingly, the case is REMANDED for the following action: 1. Provide the claims file to an appropriate medical professional other than the examiner who performed the October 2017 examination. If no other appropriate examiner is available, provide the claims file to the October 2017 examiner. Whether or not to schedule an in person examination is left to the examiner's discretion. If the examiner determines that an in-person examination of the Veteran is necessary, schedule the Veteran for a VA examination. The examiner should answer the following questions: a) Is it at least as likely as not (50 percent probability or greater) that the diagnosed lumbar spine DJD was caused by any of the Veteran's service-connected knee or hip disabilities. The examiner is informed that the Veteran is service connected for left hip replacement, chondromalacia of the right knee, and sprain and chondromalacia of the left knee. b) Is it at least as likely as not (50 percent probability or greater) that the Veteran's lumbar spine DJD is aggravated (worsened in severity beyond natural progression of the disease) by any of the Veteran's service-connected knee or hip disabilities. The examiner is informed that the Veteran is service-connected for left hip replacement, chondromalacia of the right knee, and sprain and chondromalacia of the left knee. c) Is it at least as likely as not (50 percent probability or greater) that the Veteran's antalgic gait caused or aggravated the Veteran's lumbar spine DJD. If the examiner opines that the Veteran's lumbar spine DJD is permanently aggravated by a service-connected disability, service-connected disabilities, or the Veteran's antalgic gait, the examiner should indicate the degree of disability before aggravation and the current degree of disability. The medical opinion must include a detailed rationale, with an unambiguous explanation of specific etiologies. If the examiner cannot provide the requested opinion without resorting to mere speculation, he or she should thoroughly explain the factors that prevent him or her from offering the opinion. 2. Readjudicate the claim. The appellant 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). _________________________________________________ R. FEINBERG 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) (2017).