Citation Nr: 21071259 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-10 002 DATE: November 30, 2021 REMANDED Service connection for lumbar strain, to include as secondary to the service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran, who is the appellant, had active service from October 1996 to August 2000, from April 2006 to August 2006, and from October 2006 to October 2008. In February 2017, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This case was first before the Board in September 2018, where the Board, in pertinent part, denied initial ratings in excess of 10 percent for both the right and left knee PFS (for the period from August 16, 2011 to April 16, 2019), and denied service connection for lumbar strain, including as secondary to service-connected disabilities. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020 a Joint Motion for Remand (JMR) partially vacated the Board's decision to the extent that the September 2018 decision denied service connection on a secondary basis for the lumbar strain and ratings in excess of 10 percent for the right and left knee PFS. This case was subsequently before the Board in November 2020, where the Board granted separate 30 percent disability ratings for the right and left knee disabilities and denied service connection for lumbar strain as secondary to the service-connected disabilities. The Veteran appealed to the Court the portion of the November 2020 Board decision that denied service connection for the lumbar strain. In a July 2021 Joint Motion for Partial Remand (JMPR) the Court partially vacated the Board's decision. In compliance with the Court's Orders, additional development is required in order to assist in development. See Forcier v. Nicholson, 19 Vet. App. 414 (2006) (holding that the duty to ensure compliance with a Court Order extends to the terms of the agreement struck by the parties that forms the basis of the JMR). Service Connection for Lumbar Strain is Remanded. At the outset, the April 2020 JMR did not specifically contest the September 2018 Board's denial of service connection for the lumbar spine disability on a direct basis (38 C.F.R. § 3.303(d)). The April 2020 JMR contested the secondary service connection theory (38 C.F.R. § 3.310) as related to the service-connected disabilities. See April 2020 JMR. Subsequently, the July 2021 JMPR indicated that the parties agreed the language of the April 2020 JMR did not waive the theory of direct service connection. In this case, the April 2019 VA examiner opined that the lumbar strain was first diagnosed in 2010 as was due to a December 2010 post-service back injury. In compliance with the July 2021 JMPR, the theory of direct service connection will be readjudicated when the case returns to the Board. As to the theory of secondary service connection (38 C.F.R. § 3.310), the April 2019 VA examiner opined that the back disability was less likely than not caused or aggravated by the service-connected bilateral PFS and/or the service-connected bilateral pes planus. The April 2019 VA examiner reasoned that the service-connected right and left knee PFS was first diagnosed in 2006 and that the lumbar strain was first diagnosed in 2010 (four years later) as due to the post-service back injury. The April 2019 VA examiner also reasoned that a review of the medical literature did not support a relationship between causation or aggravation as related to either the service-connected bilateral PFS or service-connected bilateral pes planus, which the VA examiner described as weight bearing joints, and a lumbosacral muscle strain, which the VA examiner described as an axial musculature soft tissue injury. Directly addressing the July 2021 JMPR, the April 2019 VA examiner's rationale was inadequate as it did not address how the Veteran's posture, gait, and standing due to the service-connected feet and knee disabilities impacted the lower back. For the above reasons, the Board is remanding for a new VA medical opinion to assist in determining the etiology of the lumbar strain. The issue of service connection for a back disability of lumbar strain is REMANDED for the following action: 1. Request a new VA medical opinion. The relevant documents in the record should be made available to any examiner, who should indicate on the examination report that he/she has reviewed the documents. Examination of the Veteran is not required unless the examiner determines that an examination is necessary to provide a reliable opinion. If an examination is required, a detailed history of relevant symptoms should be obtained from the Veteran. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiner should offer the following opinion with supporting rationale: A) Is it at least as likely as not (50 percent probability or greater) that a lumbar strain disorder, was caused by the service-connected bilateral PFS and/or the service-connected bilateral pes planus? B) Is it at least as likely as not (50 percent probability or greater) that a lumbar strain disorder, was aggravated by (worsened in severity beyond a normal progression by) the service-connected bilateral PFS and/or the service-connected bilateral pes planus? In rendering the requested opinions, the VA examiner should specifically address whether the Veteran's posture, gait, and standing due to the service-connected feet and knee disabilities impact the lower back, an opinion offered by a February 2016 private examiner. The VA examiner is also directed to the December 2010 post-service treatment records reflecting a post-service back injury, an injury that the February 2016 private opinion does not reference, as well as the April 2019 VA examiner's opinion that the lumbar strain is related to the December 2010 post-service back injury. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tenney, 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.