Citation Nr: 21063763 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 15-12 261 DATE: October 15, 2021 REMANDED Service connection for degenerative joint disease (DJD) of the lumbar spine as secondary to service-connected status post fracture right femoral neck and surgery is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1988 to December 1988. In June 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the proceeding has been associated with the claims file. This claim was last before the Board in July 2020, at which time it denied the issue on appeal. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), which vacated the Board's prior decision and issued a Joint Motion for Partial Remand (Joint Motion) in June 2021. Accordingly, the Veteran's claim has returned to the Board for adjudication. The Joint Motion indicated that the August 2019 VA examination, previously used by the Board in its decision regarding secondary service connection, included a response to an incorrect instruction to the examiner with respect to whether the service connected disability aggravated the claimed disability. The examiner was asked to address whether the lumbar spine disability was permanently worsened beyond its natural progression by the service connected disability. In Ward v. Wilkie, 31 Vet. App. 233, 239 (2019), the Court concluded that the 'permanent worsening' standard has no application in cases involving an incremental increase in disability of a non-service-connected condition proximately due to or the result of a service-connected disease or injury. The Court indicated that aggravation need not be discernible at all times in order to permit an award of service connection under 38 U.S.C. § 1110 and 1131. Another examination and opinion will be sought in order to comply with the terms of the Joint Motion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); 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.); see also Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004) (when determining service connection, all theories of entitlement, direct and secondary, must be considered); ElAmin 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). The matters are REMANDED for the following action: 1. Updated treatment records should be sought and associated with the claims file. 2. Thereafter, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the etiology of his DJD of the lumbar spine. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, the examiner is asked to address the following: Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the DJD of the lumbar spine was aggravated (sustained any incremental increase in disabilityany additional impairment of earning capacity- regardless of its permanence) by the Veteran's service-connected status post fracture right femoral neck and surgery. (Continued on the next page) The examiner's rationale for the opinion expressed should be included in the report. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and 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). 3. Thereafter, readjudicate the appeal. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.