Citation Nr: 21003938 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 16-63 836 DATE: January 25, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran had active duty with the United States Marine Corps from January 1980 to January 1984. In December 2018, the Board of Veterans’ Appeal (Board) remanded the appeal. In August 2019, a Veterans’ Law Judge other than the undersigned issued a decision that denied the appeal. The Veteran appealed the August 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 order, which incorporated the parties Joint Motion for Remand (JMR), the Court vacated and remanded August 2019 Board decision. Entitlement to service connection for a back disability is remanded. The JMR vacated and remanded August 2019 Board decision because neither the July 2016, February 2018, and May 2019 VA opinions (this case has been addressed several times) were adequate to adjudicate the appeal becomes none of the examiner’s addressed the Veteran’s claim that his service-connected traumatic neuropathy caused leg and foot numbness, which caused him to fall off a ladder, and that the fall resulted in the back injury. Therefore, the Board finds that a remand to obtain an adequate etiology opinion is required. See 38 U.S.C. § 5103A(d); See Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled). In this regard, when providing the new opinion, the examiner must take into account that the Court has said that veterans are both competent and credible to report on signs and symptoms that come to them via their own senses such as the leg and foot numbness caused by this claimant’s service-connected traumatic neuropathy. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Also see El–Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). While the issue is in remand status, any outstanding VA and private treatment records should also be obtained and associated with the record on appeal. See 38 U.S.C. § 5103A(b). The appeal is REMANDED for the following actions: 1. In order to comply with the JMR, obtain from the Veteran authorizations to obtain all medical records surrounding his fall from a ladder and the subsequent back injury as well as any other outstanding private treatment records. Thereafter associate these records with the claims file. If there are no records documenting the Veteran’s treatment following the fall from the ladder, he should be asked to tell VA this fact. If possible, the Veteran himself should submit any pertinent evidence the Board/VA does not have. 2. Obtain and associate with the claims file any other outstanding VA treatment records. 3. In order to comply with the JMR, provide the Veteran with a VA examination to obtain a medical opinion as to origins of his back disability. The claims folder should be made available to and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: i. Provide an opinion as to whether it is at least as likely as not that the Veteran’s back disability had its onset directly during the Veteran’s service or is otherwise related to any event or injury during his service. ii. If arthritis is diagnosed, provide an opinion as to whether it manifested in the first post-service year. iii. Provide an opinion as to whether it is at least as likely as not that the leg and foot numbness caused by the Veteran’s service-connected right and left leg traumatic neuropathy: a. could have caused a fall from a ladder as claimed by the appellant and b. a fall from the ladder could cause his current back disability. iv. Provide an opinion as to whether it is at least as likely as not that a back disability was caused by the service-connected right and left leg traumatic neuropathy. v. Provide an opinion as to whether it is at least as likely as not that a back disability was aggravated by the service-connected right and left leg traumatic neuropathy. In providing answers to the above questions the examiner should consider and discuss the service treatment records and post-service records to include any records surround the Veteran’s fall from a ladder. In order to comply with the JMR, the examiner in providing the above opinions must consider and discuss, among other things, the Veteran’s competent lay claims regarding observable symptomatology include leg and foot numbness and observable events like a fall from a ladder even if neither is documented in the record. In providing answers to the above questions the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing the etiology opinion, the examiner should be aware of the facts that the Court held in Ward v. Wilkie, 31 Vet. App. 233 (2019), that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). In answering the question please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.