Citation Nr: 21062286 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 11-10 512 DATE: October 6, 2021 REMANDED Entitlement to service connection for lumbar spine disability to include as secondary to residuals of left ankle sprain and right hip disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1974 to September 1977 and from January 1991 to June 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by a VA Regional Office (RO). By way of background, the Veteran's initial claims on appeal were for service connection for a clothing allowance, cervical spine disability, and lumbar spine disability. The Board in March 2021 remanded all claims to include having the RO issue a statement of the case (SOC) in the first instance for the claim seeking a clothing allowance. Manlincon v. West, 12 Vet. App. 238, 240 (1990). At which time, the Veteran would need to file a substantive appeal of the RO's decision once the SOC was issued. As the Veteran has not filed an appeal, the issue of service connection for a clothing allowance is therefore not before the Board. As to the claim for service connection for a cervical spine disability, subsequent to the Board's March 2021 remand, service connection was granted in a June 2021 rating decision. This being a complete grant of the benefits sought, this claim is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Turning to the remaining issue before the Board, the Veteran was afforded a VA examination and medical opinion for his lumbar spine disability in May 2021 in accordance with the Board's March 2021 remand. Unfortunately, as will be discussed below, the resulting opinion was not responsive to the Board's directive and, therefore, further remand is required. See Stegall v. West, 11 Vet. App. 268, 271(1998). Entitlement to service connection for lumbar spine disability to include as secondary to residuals of left ankle sprain and right hip disability is remanded. The Veteran contends that his lumbar spine disability began during service and has continued to the present. Alternatively, the Veteran asserts that his lumbar spine disability is secondarily related to his service connection conditions. To that effect, the Board has previously attempted to obtain on several occasions an adequate VA examination for the Veteran's claimed condition without success. Most recently in March 2021, the Board requested that the Veteran be afforded a new VA examination with accompanying medical opinions for direct and secondary theories of entitlement to service connection. Unfortunately, the resulting opinions are found to be inadequate for adjudicative purposes and an additional remand is required. See Stegall, 11 Vet. App. at 271. In May 2021, the Veteran was afforded a VA examination for his claimed lumbar spine disability. At which time, the examiner diagnosed him with degenerative arthritis with degenerative disc disease of the lumbar spine. Ultimately, the examiner opined that these conditions were less likely than not related to military service. The examiner's rationale included a discussion of "multiple risk factors" linked to the cause of osteoarthritis to include obesity. It was noted that the Veteran has some of these comorbidities and "due to large time gap" the examiner could not rule out natural progression of aging and daily activities of living as the etiology of his lumbar spine conditions. On a secondary basis, the examiner also opined in the negative. The examiner stated that "it is less likely than not [Veteran's] lumbar spine condition is related to the service-connected disabilities because these are in separate anatomical regions distal from lumbar spine and likely note affecting lumbar spine". In an addendum medical opinion obtained in June 2021, the examiner further opined that "the lumbar spine condition is less likely than not...aggravated beyond its natural progression by the Veteran's service-connected left ankle condition and/or right hip condition". However, the Board finds the above opinions to be inadequate on several grounds. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate); 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"). First, the Board specifically requested the May 2021 examiner to consider and address the private physician, Dr. N.A.O.V.'s July 2010 opinion received by VA in December 2010. This opinion provided a positive nexus opinion on a direct basis for the Veteran's claimed lumbar spine conditions. However, the May 2021 examiner never mentioned the private opinion, nor was it listed in the evidence reviewed by the examiner. See Stegall, 11 Vet. App. at 271. Second, clarity is needed as to what time period the examiner is referencing in regard to a "large time gap". Is the examiner referring to the time elapsed since active-duty service and a formal diagnosis or perhaps some other reference point to include reports of low back pain during service. Therefore, the probative value of the examiner's opinion is reduced and a need to address this matter for clarity is warranted prior to adjudication. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment). Third, the May 2021 examiner failed to adequately address the Veteran's secondary theory of entitlement to service connection. Specifically, the examiner explained that the Veteran's service-connected conditions "are in separate anatomical regions...and likely not affecting lumbar spine. The use of the term "likely not affecting" based on location of conditions to be speculative in nature and therefore must be given little probative weight. See Hood v. Shinseki, 23 Vet.App. 295, 298-99 (2009) (holding that the equivocal nature of an examiner's opinion "should have signaled to the Board that the medical opinion was speculative and of little probative value"). Fourth, the RO requested an addendum opinion in June 2021 from the May 2021 examiner because an aggravation opinion was not previously provided. In response, the examiner opined in the negative as indicated above. However, the RO specifically requested supporting rationale for the examiner's aggravation opinion. The examiner in June 2021 failed to provide any rationale or even a passing reference to the prior examinations of record. As such, the Board finds this opinion to be conclusionary in nature and a remand is warranted. See Stefl v. Nicholson, 21 Vet.App. 120, 124-25 (2007) (a mere conclusion by an examiner is insufficient to allow the Board to make a fully informed decision as to the probative value of the opinion). See also Horn v. Shinseki, 25 Vet.App. 231, 240-42 (2012) (stating that under caselaw "an unexplained conclusory opinion is entitled to no weight in a service-connection context"). Lastly, it is unclear whether or not the examiner from May 2021 and June 2021 was a licensed orthopedist as requested by the Board in its March 2021 remand. The May 2021 examiner has only the notation of "MD, Internal Medicine" next to their name. Therefore, the RO is asked to document the credentials of the examiner in the claims file so that the Board may confirm the appropriate examiner has been scheduled. A remand by the Board confers upon the claimant a legal right to substantial compliance with the remand order; thus, when the Board's remand directives are not satisfied, the Board errs as a matter of law if it fails to ensure substantial compliance with such directives. See Stegall, 11 Vet. App. at 271. Therefore, as substantial compliance with the Board's March 2021 remand directives has not occurred as set forth above, the Veteran's claim must once again be remanded for further development. See id. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an orthopedist/orthopedic surgeon to ascertain the nature and etiology of the Veteran's lumbar spine disabilities. The examiner should review the entire record and note that such review took place. The examiner is asked to address the follow: (a.) Identify any and all current diagnoses of the lumbar spine or, if there is no diagnosis, whether the Veteran's lumbar spine pain causes functional impairment of earning capacity (and is, therefore, considered a "disability" for VA purposes). (b.) For each diagnosis or "disability" found, opine whether it at least as likely as not manifested in service or was otherwise due to active service, in light of reports of low back pain noted in service treatment records (STRs) in April 1976, June 1976, August 1977, and May 1991, and the Veteran's lay reports of back symptoms since service. (c.) For each diagnosis or "disability" found, further opine whether it is at least as likely as not caused or aggravated by the Veteran's service-connected left ankle and/or right hip disabilities. The examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310 (b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). In determining whether his claimed conditions are aggravated by the service-connected disability, discuss a baseline level of severity of the claimed condition established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. The examiner is asked to specifically discuss the July 2010 private medical opinion by Dr. N.A.O.V., received by VA in December 2010. The clinician is asked to provide a through rationale and to explain the reasons behind any opinions expressed and conclusions reached, and in doing so, special attention is invited to the Veteran's lay statements of record. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.