Citation Nr: 21065697 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 09-39 973 DATE: October 27, 2021 REMANDED Entitlement to service connection for a cervical spine disability as secondary to a lumbar spine disability and/or a bilateral foot disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1973 to May 1973. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated April 2008 issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran timely appealed. The Veteran's appeal has previously been before the Board. In December 2014, June 2016, June 2017, and February 2019, when the Board remanded the Veteran's claims to the Agency of Original Jurisdiction (AOJ) for additional development. A Board video hearing was held before the undersigned Judge in July 2021. The hearing transcript has been associated with the Veteran's file. Entitlement to service connection for a cervical spine disability as secondary to a lumbar spine disability and/or a bilateral foot disability is remanded. The Veteran has claimed entitlement to service connection for a cervical spine disability as secondary to his service-connected lumbar spine disability and/or bilateral foot disability. In June 2020, a VA examiner provided an opinion as to the Veteran's cervical spine disability. The examiner provided opinions for other theories of service connection; however, these theories are not being pursued by the Veteran nor are they otherwise raised by the record. The Veteran, his representative, and the record raise no other theory of service connection. As a result, the Board will limit its analysis to the secondary service connection theory advanced by the Veteran. Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008). The June 2020 VA examiner determined that the claimed condition was less likely than not proximately due to or the result of Veteran's service-connected multilevel degenerative disc disease with spondylosis lumbar spine. He provided, "Downstream" SC conditions would not medically plausibly affect upstream neck condition...impact of life does not transmit weightbearing L spine and further distally the forces to c spine...scoliosis, pelvic tilt, obliquity are part of ddd djd of l spine and its SC condition also of bilateral radiculopathy...do not pyramid and add further diagnoses...which would be adding NOS additional diagnoses...it is expected that the (scoliosis, pelvic tilt, obliquity) are part of what is a static deformity...now and the ddd djd are the active part since first VBA rated in 11/2001 as sec to left foot. The Board finds that the opinion as written does not clearly explain the medical reasoning supporting a finding that the cervical spine disability is not caused by the service-connected lumbar spine disability. As a result, this opinion is not adequate to address causation of the cervical spine disability by the service-connected lumbar spine disability. As for aggravation by the service-connected lumbar spine disability, the examiner stated that the Veteran's claimed condition was less likely than not aggravated beyond its natural progression by the service connected condition. He wrote, "There is no plausible permanent aggrav of L spine to C spine." The opinion as written is conclusory and does not clearly explain the medical reasoning supporting the finding that the cervical disability is not aggravated beyond its natural progression. Moreover, the incorrect standard is used because a finding of "permanence" is not required for secondary service connection. Ward v. Wilkie, 31 Vet. App. 233 (2019) (there is no requirement that any aggravation be permanent under 38 CFR 3.310(b)). Moving to the theory that the cervical spine disability is secondary to the service-connected foot disability, the examiner concluded that the claimed condition was less likely than not proximately due to or the result of Veteran's service-connected postoperative status, removal of the proximal portion of the base of the fifth metatarsal, secondary to old nonunion fracture, with evidence of callus, left foot. He wrote, "'Downstream' SC conditions would not medically plausibly affect upstream neck condition...impact of life does not transmit weightbearing L spine and further distally the forces to c spine...especially the foot." With respect to aggravation, the examiner stated that the Veteran's claimed condition was less likely than not aggravated beyond its natural progression by the service connected bilateral foot disability. The rationale provided is identical to that given for the negative causation opinion for the service-connected lumbar spine. See block quote p.2. The Board finds that the opinions as written do not clearly explain the medical reasoning supporting a finding that the cervical spine disability is not caused or aggravated by the service-connected bilateral foot disability. Furthermore, in both cases, the examiner did not discuss the medical literature cited by the Veteran's representative in a December 2018 appellate brief which supports a "domino effect" theory of relationship between the relevant joints. The Board finds that the opinions of the June 2020 VA examiner are inadequate because they do not provide clear explanations for the reasoning behind the opinions given. Although the June 2020 examiner provided a rationale for the causation opinions, he did not provide any rationale regarding aggravation. Findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under 38 C.F.R. § 3.310 (b). See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013); see also Atencio v. O'Rourke, 30 Vet. App. 74 (2018) (holding that causation and aggravation are independent concepts and should have separate findings and rationales). Since the Board finds the June 2020 VA examination and opinions are inadequate for service connection purposes, the Board must remand the Veteran's claim for a new opinion. See 38 U.S.C. § 5103A(d); 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). Unfortunately given the long history of remands in this case, the Board finds that remand is necessary to obtain an addendum opinion addressing whether it is at least as likely as not that the Veteran's cervical spine disability was caused or aggravated by his service-connected lumbar spine disability and/or bilateral foot disability and to consider the medical literature submitted by the Veteran's representative. Accordingly, the matter is REMANDED for the following action: 1. Request an addendum opinion addressing the Veteran's claimed cervical spine disability. In-person examination is not required unless deemed necessary by the examiner. The examiner must review and discuss the medical literature cited to in the December 2018 Appellate Brief. Based upon a review of the entirety of the claims file, the examiner is requested to provide an addendum opinion as to the following questions: (a.) Is it at least as likely as not that the Veteran's cervical spine disability was caused by the service-connected lumbar spine disability? (b.) Is it at least as likely as not that the cervical spine disability was aggravated by (worsened in severity beyond a normal progression by) the service-connected lumbar spine disability? (c.) Is it at least as likely as not that the Veteran's cervical spine disability was caused by the service-connected bilateral foot disability? (d.) Is it at least as likely as not that the cervical spine disability was aggravated by (worsened in severity beyond a normal progression by) the service-connected bilateral foot disability? Explanations for all opinions must be provided. In providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records and the Veteran's statements regarding the onset of his symptoms. Separate and distinct rationales must be provided for causation and aggravation. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Minock 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.