Citation Nr: 21004720 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-06 289 DATE: January 28, 2021 REMANDED Service connection for a lower back disability, to include as secondary to a right ankle injury is remanded. Service connection for a left lower extremity condition, to include as secondary to a right ankle injury is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1974 to November 1978, and from February 1979 to May 1987. This case is before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for a lower back condition and for a left lower extremity condition. The Veteran’s notice of disagreement (NOD) was received in July 2013. The RO issued the statement of the case (SOC) in January 2016, and the Veteran’s VA Form 9, substantive appeal was received in January 2016. In October 2018, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is of record. In March 2019, the Board remanded the case for further development and adjudicative action. 1. Entitlement to service connection for a lower back condition, to include as secondary to a right ankle injury is remanded. 2. Entitlement to service connection for a left lower extremity condition, to include as secondary to a right ankle injury is remanded. The Veteran contends that he is entitled to service connection for a lower back condition and a left lower extremity condition, to include each as secondary to a right ankle injury. At a November 2002 Texas Rehabilitation Commission Disability Determination Exam, the Veteran asserted that he had a pinched nerve. He reported that he hurt his back while lifting weights in 1994, while working. He does not recall any back pain, but he did recall having leg pain. He reported that the left leg pain was so severe at one point that he sought medical attention and he was found to have a “pinched nerve.” The Veteran further reported that one month later, he underwent lumbosacral spine surgery. November 2002 x-ray study reveals narrowed L5/S1 disc space and the impression was degenerative changes at L5/S1. In a December 2003 rating decision, the RO granted service connection for a right ankle disability. In support of his claim of service connection for a low back disability, the Veteran submitted a July 2012 handwritten statement from a physician, A.H. who stated, “His previous ankle injury may be a continuity factor for his low back pain.” No rationale was provided for the opinion. Pursuant to the March 2019 Board remand, the Veteran was scheduled for a VA back (thoracolumbar spine) conditions examination in October 2019. The examiner noted no diagnosis of a back condition, but that was apparently in error, as the examiner also noted that the Veteran has a back condition which impacts his ability to work; and, noted that the Veteran’s lower extremity pain is “secondary, lower back condition, to include as secondary to a right ankle injury. Onset: 1995.” See October 2019 VA back (thoracolumbar spine) conditions Disability Benefits Questionnaire (DBQ), p. 2, 15, 17. The examiner also reported a medical history which includes constant, daily pain and discomfort when walking, standing and sitting for long periods of time. The Veteran reported that the pain radiates to the lower extremities, but the examiner noted that there was no radicular pain or other signs/symptoms due to radiculopathy. In addition, the examiner acknowledged that a November 2016 lumbar spine MRI revealed postoperative changes, a disc protrusion and spinal stenosis. A review of the VA treatment records indicates that the Veteran had back surgery in 2015. In September 2016, the Veteran reported that his leg pain started after his back surgery; and, in October 2016, the Veteran was assessed with low back pain radiating down to the lower leg, failed back surgery syndrome, lumbar radiculopathy, lumbar spondylosis, lumbar spinal stenosis, and left foot drop. The examiner was specifically asked, pursuant to the March 2019 Board remand directives, to opine as to whether the Veteran had any back disabilities, including degenerative disc disease and radiculopathy. If so, the examiner was to opine as to whether any such disability was related to the Veteran’s in-service complaints of back pain, or were otherwise incurred in service; or, were aggravated by the Veteran’s in-service back pain or the service-connected right ankle injury. The examiner opined that the claimed conditions were less likely than not related to service. The examiner’s sole rationale for the opinion was: “Veteran states that he is unable to complete the exam due to medical complications not related to his claim.” When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this case, the examiner’s opinion does not adequately address the questions set out in the March 2019 Board remand, because the examiner provided no rationale other than a note of the Veteran’s inability to complete the examination. However, the dispositive issue in this case is whether the Veteran’s current back disability (and any accompanying radiculopathy) is related to an inservice injury or disease; or, whether it is secondary to, or aggravated by, the service-connected right ankle disability. The examiner apparently reasoned that the question of nexus could not be addressed simply because the Veteran could not complete the physical examination. That same examiner, however, noted the impressions from CT scans, MRI reports and x-rays taken from 2013 through 2018. Thus, it is apparent that the Veteran has a current disability, or at least had a current disability during the pendency of this claim, and therefore the Veteran’s inability to complete the physical examination portion of the exam should not, in and of itself, dictate the outcome of these claims. Accordingly, the rationale provided for the nexus opinion is not adequate. Moreover, the October 2019 opinion is unclear as to whether there is a diagnosis of associated lower extremity radiculopathy; and/or, whether there is a relationship between any current disability and the service-connected right ankle disability. As the opinion is inadequate, the claim must be remanded to obtain another medical opinion. The matters are REMANDED for the following action: Schedule the Veteran for a VA spine examination to determine the current nature and likely etiology of the Veteran’s lumbar spine disability and lower extremity radiculopathy. The examiner must review the claims file in conjunction with the examination and acknowledge the objective findings, including whether the Veteran continues to suffer from symptoms of failed back surgery syndrome identified in 2016, including, but not limited to low back pain with radiation into the lower extremities, lumbar spondylosis, lumbar spinal stenosis, and radicular symptoms including left foot drop. All indicated tests should be conducted, to the extent possible. Then, the examiner should opine as to whether the Veteran’s current lumbar spine disabilities are at least as likely as not: A. related to the Veteran’s in-service complaints of back pain, or were otherwise incurred in service; or B. aggravated by (increased in severity beyond the natural progression) the Veteran’s service-connected right ankle injury. For each opinion provided, the examiner should include a complete rationale which considers the findings of the examination, the medical records, and the medical history as reported by the Veteran. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. KAYS HUKILL 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.