Citation Nr: 18156698 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-59 333 DATE: December 11, 2018 REMANDED The issue of entitlement to service connection for a low back condition is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1988 to February 1989 and from November 1990 to July 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Offices (RO) in Houston, Texas, which denied entitlement to service connection for a low back condition. The Veteran timely perfected an appeal of the February 2010 rating decision. See April 2010 Notice of Disagreement; October 2016 Statement of the Case; November 2016 VA Form 9. The Veteran contends that her low back condition is related to in-service injuries. Alternatively, she asserts that her low back condition is caused or aggravated by gait changes related to her service-connected right foot disability. A November 1990 service treatment record shows that the Veteran reported back pain, and she was diagnosed with muscle strain. An August 1991 service treatment record shows that the Veteran reported a right foot injury since a February 1991 fall from a truck. Post-service, the Veteran reported chronic low back pain during an initial VA treatment visit in October 1991. Thereafter, the Veteran reported low back pain during VA treatment in December 1995, March 1996, and January 2000. A November 2000 private operation report related to right foot surgery shows a past medical history of chronic lower back pain. During a July 2001 VA hip examination, the Veteran was noted to have a chronic limp and a right out-toeing antalgic gait. She was diagnosed with trochanteric bursitis related to gait and stance changes due to her service-connected right foot disability. A February 2006 VA problem list shows a notation of chronic low back pain with an onset date of 1992. An August 2009 VA treatment record shows that the Veteran reported low back pain that “seems to be related to chronic foot pain, ? favoring sides.” In a September 2009 statement, the Veteran reported that she was injured after jumping from a truck in service. During a January 2010 VA examination, the Veteran was diagnosed with degenerative arthritis of the lumbar spine. In her February 2010 notice of disagreement, the Veteran asserted that her low back pain had been ongoing since active duty. A July 2010 private chiropractic record reflects a notation that the Veteran’s low back condition could “possibly” be related to walking differently due to foot problems or to falling from four feet while in the military. In an October 2012 letter, the Veteran’s private chiropractor opined that the Veteran’s “problems with her feet have contributed at least some part to her back problems” because “it is well-known that any type of problem with the feet can lead to problems with gait, posture, and alignment of the spine.” The Veteran was afforded a VA examination in November 2013. The examiner noted a diagnosis of spondylosis of the lumbar spine. The examiner opined that the Veteran’s low back condition was not caused by or the result of the Veteran’s service-connected right foot disability because the “medical literature is silent regarding any relationship” between a lumbar spine condition and a right foot disability. The examiner also indicated that it was “anatomically impossible” for the right foot to affect the lumbar spine. The Veteran was afforded a VA examination in July 2016. She reported that she fell from a truck while in Desert Storm and hurt her back, as well as her right foot. She reported experiencing “a lot of back pain” between 1992 and 2010. The examiner noted treatment for a low back condition beginning in 2010. The examiner opined that the Veteran’s low back condition was not related to service because “[s]he was treated for lumbar strain while in the service over 25 years ago” and a lumbar strain is “a temporary soft-tissue disorder which typically resolves in several weeks to months without residuals or long lasting sequelae.” The examiner indicated that “[t]here was no significant back injury and no objective evidence of a residual back pathology documented in the STRs.” When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the November 2013 VA examiner’s opinions are conclusory and do not take into account all of the Veteran’s contentions regarding the effect of gait changes caused by her service-connected right foot disability, and the examiner did not offer an opinion regarding the aggravation aspect of secondary service connection. The Court has made it clear than an opinion will be considered inadequate unless it addresses both the “caused by” and “aggravation” avenues for secondary service-connection. El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Further, the November 2013 VA examiner did not discuss the October 2012 private opinion regarding the relationship between the Veteran’s low back condition and her service-connected right foot disability. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an examination report “if further evidence or clarification of the evidence...is essential for a proper appellate decision”). The Board also finds that the July 2016 VA examination report is also incomplete. As an initial matter, the examiner’s statements regarding the Veteran’s post-service treatment are inaccurate and reflect a less than thorough review of the evidence. In this regard, the examiner noted low back treatment starting in 2010, whereas the record clearly shows low back treatment periodically since 1991. Additionally, although the examiner discussed the in-service treatment for a low back strain, the examiner did not discuss the Veteran’s contentions that she also injured her low back in the documented fall from a truck in February 1991. Thus, the July 2016 VA examiner did not consider the Veteran’s lay statements regarding symptoms in service and since service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (the probative value of a medical opinion is determined by whether the examiner was informed of sufficient facts upon which to base an opinion and whether the report contains data, conclusions, and a complete rationale in support thereof). As the opinion appears to have been based on an inaccurate factual premise, it is incomplete and a new opinion is needed. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Therefore, the Board finds a remand is necessary to obtain a new VA medical opinion. The record reflects that the Veteran works for the United States Postal Service. As the record does not show that the RO has attempted to obtain pertinent United States Postal Service records, the Board finds remand is warranted to obtain any outstanding records. Additionally, although the RO noted in the October 2016 statement of the case that it had reviewed VA treatment records through October 2016, the Board notes that there are no VA treatment records in the claims file dated after November 2013. Any outstanding VA treatment records should be obtained on remand. Lastly, as the record shows that the Veteran receiving ongoing VA and private treatment for her low back condition, any updated treatment records should be obtained on remand. The matter is REMANDED for the following action: 1. Obtain any relevant U.S. Postal Service medical records. 2. Send the Veteran and her representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private records. 3. Obtain and associate with the Veteran’s claims file all outstanding VA treatment records from November 2013 to the present documenting treatment for the issue on appeal. If any of the records requested remain unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159 (e). 4. After all available records have been associated with the claims file, obtain an opinion as to the etiology of the Veteran’s low back condition. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The entire claims file and a copy of this Remand must be made available to the reviewing examiner and the examiner shall indicate in the report that the claims file was reviewed. (a.) After reviewing the record and, if necessary, examining the Veteran, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any currently diagnosed low back condition, to include degenerative arthritis and spondylosis, had its onset during active service or is related to any in-service disease, event, or injury, to include the in-service complaints and treatment for low back pain in November 1990 and the Veteran’s fall from a truck in February 1991. In so opining, the examiner should address the likelihood that injuries such as the ones described by the Veteran could have caused the Veteran’s documented low back conditions. (b.) The examiner should also offer an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any currently diagnosed low back condition, to include degenerative arthritis and spondylosis, is proximately due to or caused by the Veteran’s service-connected right foot disability, to include gait changes caused by the right foot disability. If not, is it at least as likely as not (i.e., 50 percent probability or greater) that any currently diagnosed low back condition, to include degenerative arthritis and spondylosis, was aggravated (permanently worsened in severity beyond a natural progression) by the Veteran’s service-connected right foot disability, to include gait changes caused by the right foot disability? If the examiner determines that any currently diagnosed low back condition, to include degenerative arthritis and spondylosis, was aggravated by the service-connected right foot disability, the examiner should report the baseline level of severity of the low back condition prior to the onset of aggravation. If some of the increase in severity of the low back condition is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. In providing these opinions, the examiner must review and discuss the October 2012 opinion of the Veteran’s private chiropractor, as well as the July 2001 VA hip examination discussing gait changes. If necessary, and to the extent possible, the examiner should reconcile his opinion with this evidence. The examiner’s report must reflect consideration of the Veteran’s entire documented medical history and assertions and all lay evidence. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 5. Following the completion of the foregoing, and any other development deemed necessary, the AOJ should readjudicate the Veteran’s claim. If the claim is denied, supply the Veteran and her representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel