Citation Nr: 21070231 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 15-41 118A DATE: November 23, 2021 REMANDED Entitlement to service connection for lumbar-spine disorder, to include as secondary to and/or aggravated by service-connected right and left-foot disorders and/or as due to multiple spinal injections received during active-service foot surgery, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1976 to July 1978. In December 2018, the Veteran testified at a videoconference Board hearing before a Veterans Law Judge no longer at the Board. The Veteran was notified by letter of this in April 2021, informed of his right to a new hearing, further informed if he gave no response within 30 days, he would be presumed to have waived an election for another hearing, and the Veteran offered no response. The Board has since proceeded accordingly. Entitlement to service connection for lumbar-spine disorder, to include as secondary to and/or aggravated by service-connected right and left-foot disorders and/or as due to multiple spinal injections received during active-service foot surgery. The Board has remanded this claim 3 times previously and will again remand. The Board's June 2021 Remand directed that there be rendered an opinion for secondary causation due to the service-connected foot disorders, which must specifically address an active-service notation of antalgic gait due to plate-fused second metatarsophalangeal joint with associated hammered second toe. (See June1977 service treatment record (STR)). Additionally, post-active-service treatment records document an antalgic gait (See July 2014, July 2015 and January 2016 VA treatment records) and a November 2020 VA examination noted the Veteran's unsteady station, unsteady locomotion and required use of a cane and walker for ambulation. However, the July 2021 opinion is inadequate. The June 2021 Remand further directed an opinion be produced addressing whether the service-connected foot disabilities aggravate the Veteran's lumbar-spine disorder. Once again, this opinion is not of record. Lastly, although the July 2021 examiner rendered an opinion addressing direct service connection, to include as a result of spinal or epidural injection for foot surgery, the Board notes briefly that the examiner in his rationale begins by asserting there is no evidence of acute or chronic back disorder while in service. This is not accurate. The record shows: a post-active-service January 1981 treatment note in which the Veteran complained of low-back pain since spinal anesthesia administered in 1977, during active service and a July 1976 complaint of low back pain in STRs for two days after being pushed. Moreover, the July 2021 examiner further explained in his rationale that degenerative spine disease is considered a naturally occurring age-related condition due to normal wear and tear over a lifetime, with associated natural disc desiccation and "the veteran's condition was age-appropriate at the time of diagnosis." This may or may not be clinically valid, but it does not directly address the Veteran's lay evidence of low-back pain, while still a young man, occurring directly after a spinal injection during foot surgery. It also ignores the evidence of low back pain in 1976. Therefore, the July 2021 opinion has substantially failed to comply with the Board's June 2021 directives and remand is again necessary for opinions adequate for VA adjudication purposes. The matters are REMANDED for the following action: 1. Contact the Veteran and/or his representative for information pertaining to any current treatment for lumbar-spine disorder at any VA facility and by any private treatment provider. Obtain any records of the above treatments not yet associated with the claims file and associate them with the claims file. The assistance of the Veteran and/or his representative should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. Arrange for the claims file and a copy of this remand to be made available to an examiner with an appropriate specialty for producing findings for low-back disorders. The complete electronic claims file must be made available to the examiner in conjunction with the review. The examiner should detail all findings. If the examiner deems a new VA examination to be necessary, arrange for that examination. Following review of the claims file, to include a copy of these Remand directives and the Remand introductory text, and examination of the Veteran, the examiner should address the following: (a) Whether lumbar-spine disorder was at least as likely as not (a 50 percent or greater probability) incurred during active service or is caused by an event, injury or illness occurring in active service, to include as a result of multiple spinal injections received during 1977 active-service foot surgery. In providing this opinion, the examiner must address the Veteran's lay statements regarding onset and continuity of symptomatology since onset and/or since separation from active service. The examiner must also address any other pertinent evidence of record, to include the January1981 VA treatment record documenting the Veteran's assertion that he has had low-back pain since spinal anesthesia in 1977 and the record from 1976 regarding low back pain. (b) Whether it is at least likely as not (a 50 percent or greater probability) lumbar-spine disorder is proximately due to or the result of service-connected right and left-foot disorders. In providing this opinion, the examiner must address the pertinent evidence of record, to include the June1977 STRs noting the Veteran ambulated with an antalgic gait due to plate-fused second metatarsophalangeal joint with associated hammered second toe and the post-active-service treatment records indicating that the Veteran's gait was noted to be antalgic on examination in July 2014, July 2015 and January 2016. (c) Whether it is at least likely as not (a 50 percent or greater probability) lumbar-spine disorder was made worse beyond its natural progression by service-connected right and left-foot disorders. Any incremental increase in disability means additional impairment of earning capacity, objective measurement or numerical quantification is not required to ascertain an increase in disability and any incremental increase in disability need not be permanent. The examiner is requested to use the exact language and terminology in the examiner's opinions as stated above in the opinion questions, as deviation from such language and terminology or the use of equivocal language such as "not related to" and similar phrases have been held on appeal to the Board's reviewing court to be an incorrect evidentiary standard for VA adjudication purposes. Each opinion rendered by the examiner must be accompanied by a rationale, by which conclusions are supported by references to and discussion of findings on examination, to clinical findings in the medical evidence of record and/or to accepted medical literature. The examiner is requested to comment on any relevant opinions found in the record. (Continued on the next page) The examiner is further requested to discuss the Veteran's December 2018 Board hearing testimony and July 2011 correspondence, as well as his reports to treatment providers and examiners as they appear throughout the record. The Board urges the examiner to note that opinions rendered without discussing such lay evidence of the Veteran as it pertains to lumbar-spine disorder and his service-connected foot disorders will be deemed insufficient for VA adjudication purposes. 3. After completing the above development and any other development indicated, readjudicate the claim. If the benefits sought are not granted, provide the Veteran and his representative with a Supplemental Statement of the Case and allow an appropriate opportunity to respond before returning the case to the Board. EMILY TAMLYN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, 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.