Citation Nr: 21065678 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 09-42 227 DATE: October 27, 2021 REMANDED Entitlement to service connection for a low back disability, to include as secondary to service-connected left lower extremity shell fragment wound (SFW) residuals, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from October 1967 to October 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2007 rating decision. In September 2012, a Travel Board hearing was held before the undersigned; a transcript of the hearing is in the record. In February 2013, May 2015, April 2017, and December 2017, the matter was remanded for additional development. A December 2019 Board decision denied service connection for a low back disability and left hip disability. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (CAVC). A September 2020 CAVC Order vacated the portion of the Board's December 2019 decision that denied service connection for a low back disability, and remanded it to the Board for further development and re-adjudication consistent with terms of an August 2020 Joint Motion for Partial Remand (JMPR). In March 2021, the case was remanded for further development. The Veteran served in combat, and was awarded a Combat Infantryman Badge and a Purple Heart Medal; he is entitled to consideration of his claims under the relaxed evidentiary standards afforded under 38 U.S.C.§ 1154(b). The Board regrets the further delay associated with another remand, but unfortunately, the March 2021 remand instructions were not adequately fulfilled. See Stegall v. West, 11 Vet. App. 268 (1998). The Board directed development for an adequate medical advisory opinion that addressed the evidence of limp or altered gait in the record (April 1994-February 1995 private treatment records, a September 23, 2009 VA examination, a May 15, 2014 VA treatment record, and a July 17, 2015 VA treatment record) and to clarify why such limp or altered gait was, or not, considered, significant. On August 2021 (conducted in May 2021 but completed in August 2021) VA back examination, the examiner opined (in multiple opinions that addressed direct and secondary causation) that it was less likely than not that the Veteran's low back disability was related to his service, to include as secondary to his service-connected left lower extremity SFW residuals. She explained that on October 1969 service separation examination, the Veteran's spine was normal on clinical evaluation, that he did not seek treatment for a back disorder or injury during service, and that there was no notation of an abnormal gait, and indicated that back pain was not documented in the records until 20 years postservice; she opined that the Veteran's work as a contractor caused chronic wear and tear on his spine over time and likely caused his lumbar spine degenerative disc disease (DDD). She further opined that the Veteran's lower extremity SFW residuals had no correlation with aggravation of his back disability and that his limp was likely due to the physical labor he performed as a contractor. The opinions are inadequate for multiple reasons. The examiner opined that the Veteran's work as a contractor (which he reportedly began in 1994) caused chronic wear and tear on his spine over time and likely caused his lumbar spine DDD and his limp. However, on September 2009 VA examination, he reported that from 1994 to [the date of examination] he worked as a self-employed contractor, ran the business (providing quotes and estimates), and had two part-time employees "who actually do the work," suggesting that his job as a contractor was not very labor-intensive. Additionally, 1994-1995 private treatment records note multiple reports of back pain with a limp, indicating that he was already experiencing a limp with his back pain when he began working as a contractor (and that a lower left extremity limp most likely did not develop "over time" after he began working as a contractor). Although the examiner indicated that she reviewed the claims file, it does not appear that the review of the above records was complete (as directed on remand). Therefore, remand for an adequate medical advisory opinion (that addresses the cited evidence of limp or altered gait) and to clarify why such limp or altered gait is, or not, considered significant, is necessary. The matter is REMANDED for the following: 1. Secure for the record any outstanding (updated to the present) records of VA evaluations or treatment the Veteran received for his low back. 2. Arrange for the Veteran's record to be forwarded to an appropriate clinician (in orthopedics, if possible), other than the August 2021 examiner, for review and an advisory medical opinion regarding whether it is at least as likely as not (a 50% or greater probability) that the Veteran's diagnosed degenerative joint disease (DJD) of the lumbosacral spine was caused or aggravated (the opinion must address aggravation) by his service-connected left lower extremity shell fragment wound residuals. The complete record (to specifically include the January 2018 and June 2019 opinions, April 1994-February 1995 private treatment records, a September 23, 2009 VA examination, a May 15, 2014 VA treatment record, a July 17, 2015 VA treatment record, and any records obtained due to the above development which note that the Veteran has a limp or altered gait) must be reviewed. [If further examination of the Veteran is deemed necessary such should be arranged.] (a) If the opinion is that a low back disability was not caused or aggravated by service-connected left lower extremity shell fragment wound residuals, explain why a limp, or altered gait (noted in the above-cited treatment records) was not significant enough to have aggravated a low back disability. (b) If the opinion is that service-connected left lower extremity shell fragment wound residuals did not cause, but aggravated, a low back disability, specify, to the extent possible, the degree of disability (symptoms and/or impairment) that resulted from such aggravation. (c) If a low back disability was not caused or aggravated by service-connected left lower extremity shell fragment wound residuals, identify the etiology for the low back disability that is considered to be more likely, and explain why that is so. The opinion must include complete rationale that cites to factual data and medical principles/medical literature, as deemed appropriate). GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, 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.