Citation Nr: 20045042 Decision Date: 07/07/20 Archive Date: 07/07/20 DOCKET NO. 14-29 756 DATE: July 7, 2020 REMANDED Entitlement to service connection for a back condition is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1973 to September 1976. As an initial matter, the Board notes that the issue of entitlement to special monthly compensation (SMC) based on loss of use of the right foot has been raised by the record in August 2014 and October 2016 statements, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2019). Likewise, in May 2020, the Veteran submitted an Application in Acquiring Specially Adapted Housing or Special Home Adaptation Grant. The Board refers this matter to the AOJ for appropriate action. A supplemental statement of the case (SSOC) dated April 7, 2020, was issued to the Veteran addressing his claim for service connection for a back condition. As part of the SSOC, he was advised of the Veterans Appeals Improvement and Modernization Act of 2017 (Appeals Modernization Act or AMA), which created a modernized review system for claims and appeals, and he was informed he could opt-in to this new process by returning one of the listed forms. The Veteran did not submit one of the forms needed to opt-in to AMA; instead, he submitted VA Form 21-0958 – the notice of disagreement (NOD) form previously used for legacy appeals. On May 7, 2020, the Veteran was notified that his Board Appeal request had been received, but he would need to complete the new VA Form 10182, Decision Review Request: Board Appeal. He did not do so. Therefore, as more than 60 days has passed since issuance of the SSOC (the time period within which he had to opt-in to the AMA), this appeal remains in the legacy system. In July 2018, a statement of the case (SOC) was issued addressing claims for entitlement to increased evaluations for service-connected hallux valgus of the right foot and the left foot, osteoarthritis of the right knee, degenerative joint disease of the right and the left ankle, and surgical scars, status post hallux valgus surgery of the left foot. As the Veteran did not submit a timely substantive appeal, the Board finds that these issues are not currently on appeal before the Board. With regard to claim on appeal, the Board remanded this issue in June 2018 in part to obtain a VA medical opinion regarding the etiology of the Veteran’s back condition. The Board requested that the examiner consider the Veteran’s assertions that his knee, foot, and ankle problems caused him to trip and injure his back badly while he was carrying a 60-pound barrel at work. Further, the Board requested that the examiner determine whether it is at least as likely as not that the Veteran’s current lumbar spine disability was caused or aggravated by his service-connected ankle, foot, and/or knee conditions. In June 2019, a VA examiner determined that, per Veterans Benefits Management System (VBMS), the record is silent for back, ankle, foot, and knee conditions in service. Therefore, it is less likely than not that the Veteran’s back condition was caused or aggravated by the knee, ankle, or foot conditions. In August 2019, the same VA examiner determined that, per Computerized Patient Record System (CPRS), the Veteran was seen by orthopedics on July 17, 2014, for knee pain and reported his knee pain started in 2012. The examiner noted that there are no records in VBMS or CPRS of knee, foot, and ankle conditions. The examiner stated she could not opine on knee, foot, and ankle conditions causing the fall and back condition due to the record being silent for these conditions, and the assertions are only subjective. The Board finds this opinion is inadequate, as it is unclear why the examiner could find no record of these conditions. The Veteran’s claims file contains private and VA treatment records addressing these conditions, as well as pertinent VA examinations from 2016 and 2017. Additionally, the record clearly reflects that the Veteran is service connected for hallux valgus of the bilateral feet, degenerative joint disease of the left knee, a left knee replacement, left knee instability, osteoarthritis of the right knee, degenerative joint disease of the bilateral ankles, and instability of the right knee. As such, the Board finds that this issue must be remanded once again in order to obtain an etiological opinion on this matter. The matters are REMANDED for the following action: 1. Associate with the claims file all available medical records from the Columbia VA Health Care System and associated outpatient clinics from August 2019 through the present. 2. Return the claims file to the VA examiner who provided the August 2019 VA opinion so that an addendum opinion may be obtained. If the same examiner is not available, an opinion should be provided by another VA examiner. The examiner should consider the Veteran’s assertions that his knee, foot, and ankle problems caused him to trip and injure his back badly while he was carrying a 60-pound barrel at work and then provide opinions on the following: a. Whether it is at least as likely as not that the Veteran’s current lumbar spine disability was caused by his service-connected ankle, foot, and/or knee disabilities (that is - hallux valgus of the bilateral feet, degenerative joint disease of the left knee followed by a left knee replacement, left knee instability (prior to the knee replacement surgery in 2015), osteoarthritis of the right knee, degenerative joint disease of the bilateral ankles, and instability of the right knee). b. Whether it is at least as likely as not that the Veteran’s current lumbar spine disability was aggravated by any of his service-connected ankle, foot, and/or knee disabilities. The examiner is advised that the term "as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide the underlying reasons for any opinions provided. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Durham, 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.