Citation Nr: 18151412 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 07-15 493 DATE: November 19, 2018 REMANDED Entitlement to service connection for a lower back disability is remanded. Entitlement to service connection for a foot disability, to include hammer toe, painful scars, plantar fasciitis, and foot cramping, is remanded. REASONS FOR REMAND In a September 2017 decision, the Board denied the issues of entitlement to service connection for bilateral hammer toes, painful foot scars, and a lower back disability. The Veteran appealed the Board’s decision on these issues to the U.S. Court of Appeals for Veterans Claims (Court), and in accordance with an April 2018 Joint Motion for Partial Remand (JMR) and Court Order the issues were remanded to the Board. The Board notes that the September 2017 decision also reopened the issue of entitlement to service connection for a left shoulder disability and remanded it to the agency of original jurisdiction (AOJ) for further development; accordingly, that issue is not currently before the Board. In the April 2018 JMR, the parties agreed that the Board narrowly construed the Veteran’s previous claims regarding disabilities of the feet and did not consider that she was diagnosed with plantar fasciitis in 2014, with symptoms of pain and cramping. The Board has broadly recharacterized the issue to include any potential foot disability for which the Veteran might otherwise be entitled to service connection. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (stating, in the context of the scope of a claim involving mental conditions, “the appellant did not file a claim to receive benefits only for a particular diagnosis, but for the affliction his mental condition, whatever that is, causes him”). 1. Entitlement to service connection for a lower back disability is remanded. In the April 2018 JMR, the parties indicated that a June 2017 addendum medical opinion obtained in connection with a September 2015 Board remand did not fully comply with the Board’s directives. The Board is obligated by law to ensure that the AOJ substantially complies with its remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). AOJ compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure compliance. Stegall, 11 Vet. App. at 271. Moreover, where VA provides a veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In the September 2015 remand, the Board stated that the examiner must consider and discuss all pertinent medical evidence, including the undated private statement received by VA on May 15, 2007. The Board noted that in the original May 2015 examination, the examiner incorrectly indicated that the statement received in May 2007 included a diagnosis of scoliosis, and the examiner relied on that information, at least in part, in forming the opinion rendered. In the June 2017 addendum medical opinion, the examiner clarified that the information regarding a diagnosis of scoliosis was contained in a different record than the statement received in May 2007, but did not offer new discussion concerning the statement received in May 2007 based on the correct information. The Board finds that the examiner did not substantially comply with the directives set out in the September 2015 remand, based on a failure to discuss the opinion given in the statement received in May 2007. Further, the Board notes that the statement received in May 2007 represents evidence in favor of the Veteran’s claim, and therefore it is crucial that the examiner discusses any differences in opinion when reaching the opposite conclusion. While the examiner did provide such an analysis in the original May 2015 medical opinion, that analysis included reasoning based upon inaccurate information. Therefore, the examiner’s opinion is inadequate on which to decide the instant appeal. The Board notes that the Veteran’s attorney argued in a June 2018 memorandum that remand for another examination would “simply be engaging in a repeated attempt at development to justify denial of the claim,” as described in Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (development of evidence should not be undertaken when evidence present is sufficient for service connection determination). In Mariano, the Court stated that VA must provide an adequate statement of reasons or bases for its decision to pursue further development where such development reasonably could be construed as obtaining evidence against an appellant’s case. Id. Distinguishing Mariano, the Court subsequently held in Douglas v. Shinseki, 23 Vet. App. 19 (2009), that VA may undertake the development of additional evidence if it is necessary to render an informed decision on the claim. As indicated in the Board’s February 2015 remand, the private chiropractor did not state whether he treated the Veteran after September 4, 1988, and did not address relevant evidence such as her two work-related injuries which occurred after September 1988. Further, the chiropractor’s given “history of the accident” does not fully reflect the evidence contained in the Veteran’s service treatment records. The chiropractor stated that the Veteran injured herself while on duty in May 1987 when she fell off a truck. However, service treatment records from May 1987 make no mention of the Veteran falling off a truck, and instead indicate that she was injured while riding in the back of a “deuce-and-a-half” truck during a bumpy ride when a rifle rack fell on her. Instead the record indicates that she was involved in an incident where she fell from a truck in February 1979 and injured her left leg. While the Board recognizes that this does not necessarily impact the course of treatment that the chiropractor provided for the Veteran’s back injury, it does indicate that the etiological opinion rendered was based upon an incorrect factual basis. Additionally, although the chiropractor stated that, “[w]hen flexion and extension x-rays were studied, there was little movement in this area,” he made no indication of any anatomical anomalies present on any radiological imaging. The chiropractor indicated that the Veteran had decreased range of motion and pain during an examination and noted “decreased sensation on the L5 dermatome, but the statement did not indicate if the findings related to a contemporaneous examination or one conducted during the claimed treatment from 1987 to 1988. The chiropractor stated that, “[a] surface EMG also indicated muscle spasms in the area [the Veteran] indicated,” confirming her back pain, and stated that all of the findings led him to conclude that, “as a result of [the Veteran’s fall on [May 5, 1987], [she] suffered a stretching and tearing injury of muscles and ligaments in the area of the [fourth] and [fifth] vertebrae of her lower back.” The chiropractor diagnosed her with lumbar disc degeneration, lumbar segmental dysfunction, and opined that, “[i]n years to come, tearing of muscles and ligaments in the neck and low back will cause spurring and increased degeneration.” As stated above, the examiner gave a factual history of the accident that the Veteran’ claimed led to her lower back disability which is not supported by the medical evidence of record, and merely relied on the Veteran’s report. Further, the chiropractor did not indicate if the evidence he based his finding that she suffered a stretching and tearing injury of muscles and ligaments on was from the timeframe when the subject incident occurred in 1987 or from at some point thereafter. This is particularly relevant as the Veteran suffered multiple work-related injuries affecting her lower back after the incident in 1987. Additionally, although the chiropractor noted that testing revealed a reduced range of motion, pain, muscle spasm, and decreased sensation on the L5 dermatome, he did not provide any explanation as to how these symptoms led to the conclusion that the Veteran stretched and tore her muscles and tendons or the diagnosis of lumbar disc degeneration. Furthermore, the chiropractor’s prognosis that the tearing of muscles and ligaments in the neck and low back will cause spurring and increased degeneration in years to come is a conclusory statement not supported by any objective medical evidence or literature. Based on the above, the Board finds that the opinion offered in the statement received in May 2007 is not independently sufficient on which to decide the Veteran’s claim. As previously noted, the Board is required to ensure that a VA examination provided regarding a service connection claim is adequate. See Barr, supra. Without further clarification of the existing VA opinion, the Board is unable to properly weigh probative value of the medical evidence of record and further development is necessary in order to render an informed decision on the claim. See Douglas, supra. Additionally, the Board is obligated to ensure that the directives set out in its prior remands are substantially complied with. See Stegall, supra. Furthermore, the Veteran’s attorney also noted that she was involved in a May 2015 motor vehicle accident while returning home from drill which “re-injured” her back. Any period of INACDUTRA during which an individual was disabled or died from an injury incurred or aggravated in the line of duty is considered active military service. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). For VA purposes, where an individual is disabled or dies from an injury or covered disease incurred while proceeding directly to or returning directly from such active duty for training or inactive duty training shall be deemed to have been on active duty for training or inactive duty training, as the case may be. VA will determine whether such individual was so authorized or required to perform such duty, and whether the individual was disabled or died from an injury or covered disease so incurred. In making such determinations, there shall be taken into consideration the hour on which the individual began to proceed or return; the hour on which the individual was scheduled to arrive for, or on which the individual ceased to perform, such duty; the method of travel performed; the itinerary; the manner in which the travel was performed; and the immediate cause of disability or death. Whenever any claim is filed alleging that the claimant is entitled to benefits by reason of this paragraph, the burden of proof shall be on the claimant. 38 U.S.C. § 106(d); 38 C.F.R. § 3.6(e)(2). The Veteran submitted evidence indicating that she was involved in a motor vehicle accident on May 3, 2015, while driving home from INACDUTRA. She provided payment records reflecting that she was compensated for INACDUTRA on May 2, 2015 and May 3, 2015 in association with her service in the Army National Guard. A May 4, 2015 private hospital record indicated that she was involved in an accident the day before, and diagnosed her with a fracture of the L1 lumbar vertebrae. In a signed statement dated May 2018, the Veteran indicated that the single-vehicle accident occurred at approximately 5:30 pm, when she “dozed a little” while driving from drill in Anderson, South Carolina to her home in Greer, South Carolina. She stated that she did not make any stops before the accident. Therefore, the evidence of record supports the Veteran’s claim that she was injured during “travel status” on May 3, 2015. See 38 C.F.R §3.6(e). The Veteran’s May 2015 VA examination was conducted two days after her accident, on May 5, 2015, but the examiner indicated that she denied having any injury to her back since 1987. The Board notes that VA did not receive the Veteran’s private hospital record describing her May 2015 injury until June 23, 2015, attached to a statement indicating a claim for compensation relating to a lumbar spine fracture. However, the examiner likewise did not address the Veteran’s accident and associated injury in the June 2017 supplementary opinion. Accordingly, the June 2017 opinion failed to address all relevant evidence of record. Therefore, remand is again necessary in order to obtain an addendum medical opinion which complies with the directives set out in the Board’s September 2015 remand, and also addresses all relevant evidence of record and provides an adequate rationale for any opinion rendered. 2. Entitlement to service connection for a foot disability, to include hammer toe, painful scars, plantar fasciitis, and foot cramping is remanded. As noted above, the April 2018 JMR indicated that the Board construed the Veteran’s claim regarding foot disabilities too narrowly, and did not address her symptoms of plantar fasciitis. The record indicates that during a March 2014 VA examination, the Veteran complained of burning pains on the sole of her feet, as well as the dorsum and lateral aspects. She indicated that the pain was worse with walking and standing and she also experienced bilateral foot cramps which made it difficult for her to walk. She also reported severe tenderness of the soles of both feet. The examiner diagnosed the Veteran with plantar fasciitis and foot cramps; however, the examiner did not indicate if the plantar fasciitis or foot cramps were related to her active duty military service. Furthermore, the evidence of record does not otherwise indicate if either condition is related to service. Accordingly, a new examination is needed on remand in order to determine the nature and etiology of any current foot disability other than painful corns, to include hammer toe, painful scars, plantar fasciitis, and foot cramping. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The AOJ should also obtain any relevant, outstanding VA treatment records and afford the Veteran the opportunity to submit or identify any relevant, outstanding private treatment records. The AOJ should attempt to obtain any such records for which proper approval has been provided. The matters are REMANDED for the following action: 1. Obtain any relevant, outstanding VA treatment records and afford the Veteran the opportunity to submit or identify any relevant, outstanding private treatment records. The AOJ should attempt to obtain any such records for which proper approval has been provided. 2. After all newly obtained records have been associated with the claims file, arrange to obtain an addendum opinion from the June 2017 examiner regarding the Veteran’s claim for entitlement to service connection for a lower back disability. If the June 2017 examiner is unavailable, obtain an opinion for an appropriately qualified examiner regarding the nature and etiology of any currently diagnosed lower back disability. Arrange for the Veteran to undergo further VA examination, by an appropriate examiner, only if such is deemed necessary in the judgment of the examiner designated to provide the addendum opinion. If an examination is conducted, all appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should be provided with a copy of the entire claims file, including this remand, for review, and should indicate that such review was completed in the opinion report. The examiner is asked to provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater likelihood) that any currently diagnosed lower back disability is related to the Veteran’s active military service. This includes, but is not limited to, her service in 1987 where lower back complaint was documented in her service treatment records as well as her motor vehicle accident while traveling home from INACDUTRA in May 2015. The examiner must provide a clearly stated rationale for any opinion expressed. The examiner should specifically address the assertions set out in the private statement received on May 15, 2007, and should discuss any differences in opinion with those represented in the subject statement. The examiner should also specifically discuss the May 2015 private hospital record indicating a fractured L1 vertebrae. If the requested opinions cannot be provided without resorting to speculation, the examiner should provide reasons why this is so, and discuss whether the inability to provide the necessary opinion is due to the absence of evidence or the limits of medical and scientific knowledge. 3. Schedule the Veteran for an examination with an appropriate examiner in order to determine the nature and etiology of any currently diagnosed foot disability other than painful corns, to include hammer toe, painful scars, plantar fasciitis, and foot cramping. The examiner should be provided with a copy of the entire claims file, including this remand, for review, and should indicate that such review was completed in the examination report. The examiner is asked to provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater likelihood) that any currently diagnosed foot disability is related to the Veteran’s active military service. To the extent possible, the examiner should indicate what particular symptoms are related to each diagnosed foot disability, including the Veteran’s service-connected painful corns. All tests and studies deemed necessary should be performed. The examiner must provide a rationale for all opinions rendered. If the requested opinions cannot be provided without resorting to speculation, the examiner should provide reasons why this is so, and discuss whether the   inability to provide the necessary opinion is due to the absence of evidence or the limits of medical and scientific knowledge. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Ferguson, Associate Counsel