Citation Nr: 18143200 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 14-05 485 DATE: October 18, 2018 REMANDED Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a lumbar spine disability, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a left hip disability, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a right hip disability, to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the Air Force from July 1992 to October 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Board remanded the matter for additional evidentiary development. Following evidentiary development, the VA Appeals Management Center (AMC) continued the previous denials in a May 2018 supplemental statement of the case (SSOC). The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. 1. Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected disability, is remanded. 2. Entitlement to service connection for a lumbar spine disability, to include as secondary to a service-connected disability, is remanded. The Veteran asserts that his cervical and lumbar spine disabilities are secondary to his service-connected right and left knee disabilities. Specifically, the Veteran contends that he sustained cervical and lumbar spine injuries in a fall down a flight of steps in 2009 which was caused by his knees giving way. In February 2017, the Board directed the RO to schedule the Veteran for a VA examination for the purposes of obtaining an opinion as to whether the Veteran’s cervical and lumbar spine disabilities: 1) began during or were otherwise caused by the Veteran’s service; 2) were caused by a service-connected disability, or 3) were aggravated by a service-connected disability. In December 2017, the Veteran was afforded Compensation and Pension (C&P) examinations. However, the examiner neglected to consider the Veteran’s fall in 2009 when opining whether the Veteran’s cervical and lumbar spine disabilities were caused by, or aggravated by, the Veteran’s service-connected right and left knee disabilities. It is also unclear if the examiner considered the Veteran’s complete medical history, including prior incidents and injuries the Veteran sustained. In addition, despite stating that there is insufficient medical evidence to determine a baseline level of severity for aggravation, the examiner opined that “the lumbar disability was not aggravated beyond its natural progression.” The examiner did not state what she used in lieu of a baseline level of severity when determining aggravation. When opining on the Veteran’s cervical spine disability, the examiner again opined that there was insufficient medical evidence to determine a baseline level of severity. The examiner also seemed to have only considered causation and not aggravation, opining that there was insufficient evidence to “connect” the Veteran’s neck disability to the service-connected knee disabilities, instead of opining whether the Veteran’s knee disabilities could or could not have made the Veteran’s neck disability worse. Compliance with remand directives by the originating agency is not optional or discretionary. The Board errs as a matter of law when it fails to ensure remand compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Also, when a VA examination is provided or when a VA opinion is obtained, the VA must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, addendum opinions should be obtained that discuss the likelihood of the Veteran’s fall in 2009 causing or aggravating his cervical spine and lumbar spine disabilities. The examiner should also review the other injuries and incidents in the Veteran’s medical record, including: 1) the Veteran’s report of neck pain after an altercation at a bar in January 2003; 2) the Veteran’s report of back pain while gardening in February 2006; and 3) the Veteran’s statements to Dr. Graham in October 2009 that he hurt his back while lifting plates. 3. Entitlement to service connection for a left hip disability, to include as secondary to a service-connected disability is remanded. 4. Entitlement to service connection for a right hip disability, to include as secondary to a service-connected disability is remanded. The Veteran contends that his bilateral hip disorder was caused by his service-connected knees. In February 2017, the Board directed the RO to schedule the Veteran for a VA examination and opine whether the Veteran’s bilateral hip disabilities: 1) began during or was otherwise caused by the Veteran’s service, 2) were caused by a service-connected disability, or 3) were aggravated by a service-connected disability. In addition, the Board directed the examiner to address the “2009 private medical opinion” when opining on the Veteran’s bilateral hip disabilities. In December 2017, the Veteran was afforded Compensation and Pension (C&P) examinations. However, instead of addressing the “2009 private medical opinion” by Dr. Graham, who opined that the Veteran’s hip condition was “secondary to his alteration in gait following multiple knee surgeries,” the examiner only discussed the 2011 medical opinion by Dr. Pease of the Salt Lake City VA medical center. Although both doctors opined that the symptoms at the Veteran’s hip may be caused by the Veteran’s knee symptoms, their rationales were qualitatively different. Dr. Graham attributed the Veteran’s bilateral hip disability to the Veteran’s altered gait caused by the Veteran’s knee disability, while Dr. Pease opined that the Veteran’s right hip pain was caused by the Veteran’s right knee pain and suspected a pelvic rotation. In addition, despite stating that there is insufficient medical evidence to determine a baseline level of severity for aggravation, the examiner opined that the Veteran’s hip condition “was not aggravated beyond its natural progression” by the service-connected knee disability. The examiner only cited to the lack of medical records noting hip problems instead of supporting her opinion with medical evidence or literature. Compliance with remand directives by the originating agency is not optional or discretionary. The Board errs as a matter of law when it fails to ensure remand compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Also, when a VA examination is provided or when a VA opinion is obtained, the VA must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, addendum opinions should be obtained that discuss the 2009 private medical opinion by Dr. Graham when answering whether the Veteran’s left and/or right hip disability was caused or aggravated by his service-connected knee disability. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran’s cervical and lumbar spine disabilities. The clinician should provide an opinion, with supporting rationale, as to the following: Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s cervical and/or lumbar spine disabilities: (a) had their onset in service or are otherwise medically related to in-service injury or disease; or, if not, (b) were caused by the Veteran’s service-connected right and left knee disabilities; or, if not, (c) were aggravated by the service-connected right and left knee disabilities. If aggravation is found, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. In providing the rationale, the examiner should address the relevant evidence of record, to include clinical records showing disc herniation in September 1998, a complaint of neck pain after an altercation at a bar in January 2003, back pain caused by gardening in February 2006, the Veteran’s fall down a flight of stairs in July 2009, and the Veteran’s statements to Dr. Graham in October 2009 that he hurt his back while lifting plates. 2. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran’s left hip and right disabilities. The clinician should provide an opinion, with supporting rationale, as to the following: Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s left or right hip disability: (a) had its onset in service or is otherwise medically related to in-service injury or disease; or, if not, (b) was caused by the Veteran’s service-connected right and left knee disabilities; or, if not, (c) was aggravated by the service-connected right and left knee disabilities. If aggravation is found, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. In providing the rationale, the examiner should address the relevant evidence of record, to include the June 2009 private medical opinion by Dr. Graham which suggested that the Veteran’s hip disability was due to the Veteran’s alteration in gait following multiple surgeries for the Veteran’s service-connected knees. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Yun, Associate Counsel