Citation Nr: 20005358 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 14-12 114A DATE: January 22, 2020 REMANDED Entitlement to service connection for a low back disability, to include as secondary to service-connected right leg residuals of a gunshot wound, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1952 until October 1954. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision by a Department of Veterans Affairs (VA) regional office (RO). This case was previously before the Board in August 2017, February 2018, and August 2019, in which it was remanded for further development, namely, to obtain an additional VA examination regarding the possibility of causation or aggravation of the Veteran’s low back disability by his service-connected right leg residuals of a gunshot wound (hereinafter “right leg disorder”). A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). Regretfully, another remand is necessary to obtain an adequate and well-reasoned VA opinion. In this case, the Board remanded the Veteran’s claim for service connection for a low back disability three previous times to obtain a VA examination and opinion as to whether the Veteran’s low back disability was directly caused by service or secondarily caused by his service-connected right leg disorder. As a result of the latest August 2019 Board remand, an October 2019 VA examination was obtained; unfortunately, this opinion is inadequate. In the October 2019 medical opinion, the examiner provided nexus opinions regarding both the direct and secondary service connection theories of entitlement. The examiner opined that the Veteran’s low back disability was less likely than not caused by service, had its onset in service or within one year of separation, and was neither caused nor aggravated by the Veteran’s service-connected right leg disorder. The examiner’s reasoning with regard to all theories was that the Veteran’s low back disability manifested 55 years post separation from service and that post-service treatment records recorded “normal musculoskeletal” examinations. The examiner also noted that the Veteran was stated to exercise for 40 minutes without mention of back concerns, that his current back condition could have been caused by cigarette use, alcohol use, or obesity, and that there was “good documentation throughout on medical management of leg disorder.” The Board finds this examination inadequate. The Board notes that in order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). In the context of a secondary theory of entitlement, Wallin makes clear that the crux of the issue is not when the Veteran sustained the current disability, but rather, why and how it is caused or aggravated by the service-connected disability. Therefore, the examiner’s reasoning that the Veteran’s service-connected right leg disorder less likely than not caused or aggravated his current low back disability because it is too far removed from military separation is legally irrelevant under a theory of secondary service connection. Importantly, as far as the Board can discern, the examiner provided no discussion of the role (or lack thereof) the Veteran’s service-connected right leg disorder plays in his current low back disability. The only potential explanation of the relationship between the two disabilities is the statement that the Veteran exercised for 40 minutes without back complaints and that there was “good documentation” on management of the leg disorder—but the Board finds these statements vague and therefore without merit. On remand, the VA examiner must specifically discuss the Veteran’s service-connected right leg disorder and its relationship with his current low back disability to determine whether the former disability caused or aggravated the latter. For this reason, a remand is necessary for another VA medical opinion. The matters are REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records pertaining to the claim on appeal. 2. Obtain an addendum medical opinion from a qualified medical professional to determine the nature and etiology of the Veteran’s low back disability. If an additional examination is deemed warranted, one should be arranged. The entire claims file must be made available to and be reviewed by the examiner. Following review of the claims file and any necessary examination, the examiner is requested to respond to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s low back disability had its onset during active service, within a year of separation, or is otherwise etiologically related to his period of service? (b) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s low back disability is caused by his service-connected right leg disorder? (c) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s low back disability is aggravated by his service-connected right leg disorder? If the examiner finds that the Veteran’s low back disability was not caused or aggravated by his service-connected right leg disorder, the examiner should provide a complete rationale as to why. Put simply, the examiner must discuss the relationship between the Veteran’s service-connected right leg disorder and his current low back disability. The Board reminds the examiner that the conclusion that the Veteran’s low back disability did not exist during service or at separation from active service cannot also be the rationale as to why the right leg disorder did not cause or aggravate the low back disability. A complete rationale for all opinions must be provided. If the examiner cannot provide an opinion without resorting to speculation, he or she should provide an explanation as to why this is so and note what, if any additional evidence would permit such an opinion to be made. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Finelli, 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.