Citation Nr: 21061570 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 15-36 101 DATE: October 4, 2021 REMANDED Service connection for degenerative changes, lumbar spine, to include as secondary to service-connected residuals of right ankle sprain, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1979 to September 1982. This matter comes before the Board of Veterans' Appeals (Board) from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript is of record. The Board remanded the appeal for development in May 2019. The Board, in pertinent part, denied service connection for the claimed back disability in December 2020. The Veteran appealed the December 2020 Board decision to the United States Court of Appeals for Veterans Claims (the Court). In an August 2021 Joint Motion for Remand (JMR), the Court vacated and remand the December 2020 Board decision for development and adjudication consistent with the JMR. Service connection for degenerative changes, lumbar spine, to include as secondary to service-connected residuals of right ankle sprain, is remanded. The Veteran seeks service connection for lumbar spine degenerative changes, to include as secondary to service-connected residuals of right ankle sprain. In the August 2021 JMR, the Court found the July 2020 and September 2020 VA opinions did not substantially comply with the Board's May 2019 remand instructions. The JMR noted the July 2020 examiner opined that the level of disability exhibited during the recent examination was inconsistent with a lumbar spine disability caused by an ankle sprain but did not acknowledge the Veteran's assertion that a fall caused by her service-connected ankle disability caused or aggravated her current back disability. Similarly, the JMR indicated that while the September 2020 VA examiner acknowledged the Veteran's reports of a fall at home, the examiner rejected the report after noting the Veteran did not state that the ankle disability caused her to fall [in the treatment record]. The Court found this to be contrary to the Board's May 2019 remand instructions. The Board acknowledges the assertions of the Veteran's husband that she has fallen in their home and injured her back, specifically because of her service-connected right ankle giving out. The Board points out, however, that it has not made any specific credibility findings with respect to such statements. In a statement received in July 2007, the Veteran's husband (D.C., Sr.) reported that when they were stationed in Ft. Wainwright in Alaska, her ankle gave out while she was descending the stairs, causing her to fall down the stairs, crack her tailbone and injure her lower back. He also indicated that in April 2007 and in May 2007, the Veteran's ankle gave way again causing her to fall and bruise and injure her back. The November 2018 hearing transcript reflects the following testimony from the Veteran's husband: She felled in Alaska, fell down the stairs. She mentioned she -- her tailbone. And she also, she broke her toe. She broke her -- she had -- When her back had gave out, this was on Father's Day she had felled and she had broke her toe because she didn't know the toe was broke because of the numbness in her back until she went to the hospital, they found out the toe was broke. See Hearing Transcript pages 9-10. The Veteran provided the following testimony: When I was in Alaska, I fell. I don't know. It's like my back locked up on me and when my back locked up on me I was coming down the stairs and I went boom, boom, boom down the stairs, broke my tailbone. And my ankle gives out so it's just, it's just like a I don't know. It's just a bunch of stuff. See Hearing Transcript page 5. VA treatment records dated in July 2009 and in August 2009 show the Veteran presented for treatment after having recently broken her toe and hurting her lower back in a fall at home. There is no specific mention of the cause of the fall. On remand, the RO is to secure an addendum opinion that considers the lay report that the Veteran has fallen numerous times in and around her home due to her service-connected ankle giving way. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's current back disability is at least as likely as not either: (1) proximately due to her service-connected residuals of right ankle sprain, or (2) aggravated beyond its natural progression by her service-connected residuals of right ankle sprain. The examiner is to review the remand in its entirety as it contains a helpful summary of the assertions raised. A rationale must accompany the two opinions that are to be provided. The examiner is advised that proximate causation and aggravation are independent concepts (i.e., aggravation of a condition by a service-connected disability is independent of direct causation). The examiner must ensure that the rationale provided for the opinions discussing 'proximate causation' and 'aggravation' are clearly distinguished and that each prong is addressed as an independent concept. (Continued on the next page) In providing the requested opinions, consider the Veteran's description of her in-service injury and symptoms as well as her post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of her current back disability, or caused or aggravated her current back disability- this should be noted. Stated another way, do the Veteran's reports about her symptoms and injuries align with how the currently diagnosed disability is known to develop, or are her reports generally inconsistent with medical knowledge or implausible? D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.Aoughsten, 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.