Citation Nr: 20004148 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 12-03 444 DATE: January 16, 2020 REMANDED Entitlement to service connection for a thoracolumbar spine disorder, to include as secondary to service-connected bilateral pes planus, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1976 to June 1977. This matter is on appeal from an August 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in December 2014, June 2017, and March 2018 when it was remanded for further development. Entitlement to service connection for a thoracolumbar spine disorder, to include as secondary to service-connected bilateral pes planus, is remanded. The Veteran contends that he is entitled to service connection for a thoracolumbar spine disorder, to include as secondary to service-connected bilateral pes planus. However, the Board finds that an additional opinion must be obtained to determine whether secondary service connection is warranted. During a February 2015 VA examination, the VA examiner opined that the Veteran’s lumbar spine condition is less likely as not proximately due to an injury sustained during service and less likely as not aggravated by his service-connected foot pain. As explained in the June 2017 Board remand, this opinion does not appear to take into consideration the Veteran’s contentions and did not provide adequate rationales addressing the theories of entitlement. During an August 2017 VA examination, the VA examiner opined that it is unlikely that pes planus would lead to degenerative disc disease of the spine and less likely as not that the lumbar spine disorder was aggravated beyond its natural progression by his service-connected pes planus. As explained in the March 2018 Board remand, the rationale does not provide an adequate basis for a nexus opinion and is speculative. In an August 2019 VA opinion, the reviewing clinician opined that the Veteran’s lumbar spine disability is less likely than not related to or aggravated by his service-connected bilateral foot condition. She addressed the Veteran’s reports of exacerbation by shoe orthotics and stated that such symptoms “would likely be transient and easily alleviated by discontinued use of the orthotics.” The United States Court of Appeals for Veterans Claims (Court) recently held that increases in disability need not be permanent to establish secondary service connection based on aggravation. Ward v. Wilkie, 31 Vet. App. 233, 240 (2019). Particularly in musculoskeletal disabilities, such as the disability on appeal, an examiner must evaluate whether additional disability arises during flareups. Id. The August 2019 opinion indicates that the Veteran may experience transient worsening of his lumbar spine. However, the opinion does not clearly address whether there is an incremental increase in disability and any additional degree of functional impairment during these flareups. Thus, an addendum opinion must be obtained. The record also reflects the Veteran receives VA treatment; thus, updated VA treatment records should be associated with the claims file. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from June 2019 to the present. 2. After completing the development in item 1, obtain an addendum opinion from an appropriate clinician for the Veteran’s claim for service connection for a thoracolumbar spine disorder. If further examination of the Veteran is deemed necessary, arrange an in-person examination. The reviewing clinician should be requested to provide an opinion (based on a review of the record) to answer the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s lumbar spine disability is proximately due to a service-connected disability, to include his service-connected bilateral foot condition or bilateral knee arthritis? (b.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s lumbar spine disability is aggravated beyond its natural progression (i.e., any incremental increase in the lumbar spine disability beyond its natural progression) by a service-connected disability, to include his service-connected bilateral foot disability or bilateral knee arthritis? In providing an opinion on this question, the examiner should consider whether there is any incremental increase in disability and functional impairment during any flareups of the lumbar spine disability. (c.) If aggravation is found, identify (to the extent possible) the baseline disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation by the service-connected disability. In addition, the examiner is asked to consider the record as a whole, to include: • September 2010 VA treatment records which note that “his foot problem could contribute to his back problem;” • September 2010 VA treatment records which note that it “feels better with the heels cut off of his shoes” and that “it helps take some of the pressure off of his back;” • July 2011 VA treatment records which note “a different knee and a different pain” that “makes his back hurt more;” and, • July 2011 VA treatment records which note he is “unable to lead off with his [right] foot” and “when that happens his back really acts up.” A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination.   Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. White, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.