Citation Nr: 20047653 Decision Date: 07/16/20 Archive Date: 07/16/20 DOCKET NO. 14-26 442 DATE: July 16, 2020 REMANDED Entitlement to service connection for a lower back disability, to include secondary to hammertoes and calluses, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1963 to October 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in September 2018. The claim was remanded for the RO to afford the Veteran a VA examination. In November 2019 a VA examination report was submitted, however it did not address the Veteran’s secondary service connection contention. Thus, the Board finds that the RO has not substantially complied with the September 2018 Board remand directive and that the matter has not been properly returned to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998). During the October 2017 Board hearing, the Veteran and his representative asserted that the Veteran’s low back disability is proximately related to the service-connected foot disabilities, to include hammer toes and calluses. Specifically, the representative argued that the Veteran’s service-connected foot disabilities altered his gait, causing undue stress on his lower back. The claim was remanded for a VA examination to address the Veteran’s argument. A November 2019 VA examination report for secondary service connection indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. The examiner opined the claimed condition is less likely than not proximately due to or the result of Veteran’s service-connected condition. For the rationale, the examiner found “the two conditions are not medically related. The claimed disorder is a separate entity entirely from the service-connected condition and unrelated to it. No medical literature has supported a medical relationship.” The examiner noted the entrance and separation examinations as well as the STR’s are silent for a back condition. During this examination the Veteran had no abnormal gait in relationship to the Veteran’s service-connected hammertoes and calluses. The examination is inadequate as the VA examiner failed to address the Veteran’s contentions. The Veteran argued his service-connected foot disabilities altered his gait, causing undue stress on his lower back, however the November 2019 VA examiner did not address this contention. Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision.”). As such, a remand is required to obtain a new opinion and rationale. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. To the extent that telehealth technology permits an alternative to an in-person examination, such opportunity is fully acceptable in lieu of an in-person examination. The matters are REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Obtain an addendum VA medical opinion to address secondary service connection. If the examiner determines that another examination is necessary to provide the requested opinion, one shall be so ordered. The examiner shall provide an opinion as to the following question: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s current lower back disability is either (a) proximately caused by or (b) proximately aggravated by his service-connected disabilities, hammer toes and calluses of both feet? The examiner must address whether the foot disabilities altered his gait, causing undue stress on his lower back. If the examiner states the back disability is aggravated by a service-connected disability(s), although not directly caused by it, the examiner should indicate the degree of additional impairment caused by the service-connected disability(s)beyond the natural progress of the disease prior to the aggravation, in terms conforming to the rating schedule is the result of an injury incurred in or as a result of his period of active duty service? Note: The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner’s opinions should be provided. The rationale for any opinion expressed must be provided. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 3. After completing the above, and any other development deemed necessary, readjudicate the appeal. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, 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.