Citation Nr: 21071804 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 15-45 577 DATE: December 1, 2021 REMANDED Entitlement to a disability rating in excess of 40 percent for lumbosacral strain with arthritis is remanded. Entitlement to service connection for a right big toe condition, to include as secondary to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1976 until July 1982. In July 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal has been before the Board on several prior occasions, most recently, in April 2021. Unfortunately, for the reasons described below, there has not been substantial compliance with the Board's prior remand directives and another remand is now required. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a disability rating in excess of 40 percent for lumbosacral strain with arthritis is remanded. The claim must be remanded again because the July 2021 VA examination is inadequate for rating purposes. The Veteran reported daily aching and sharp pain every day that is worse with prolonged standing, walking, bending, lifting, and reaching. Despite significantly decreased range of motion findings, the examiner offered inconsistent statements; that the range of motion itself does not contribute to functional loss and that pain during active range of motion resulted in functional loss. The examiner said the Veteran denied flares but did not consider the Veteran's report of worsening pain with prolonged use. Finally, because the Veteran is in receipt of the highest available rating based upon limitation of motion for his back, the examiner must opine symptoms during flare-ups results in the functional equivalent of ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). Entitlement to service connection for a right big toe condition, to include as secondary to service-connected disabilities is remanded. The claim must be remanded again because the May 2021 medical opinion is inadequate. The examiner offered a negative opinion on direct service connection because there is no objective evidence that the right great toe was injured in service. That rationale is inadequate because it does not appear the examiner considered the Veteran's credible report that his right toe was injured in the same in-service accident where he hurt his back. The opinion provider improperly relied solely on an absence of documentation of a right big toe injury but failed to consider the Veteran's report that the service treatment record incorrectly listed the injured toe as the left great toe. The negative opinion on secondary service connection is also inadequate. The examiner said the Veteran's gait has been normal with no significant alteration in weight bearing; however, on July 2021 back examination, the examiner noted muscle spasms and guarding resulting in an abnormal gait or abnormal spinal contour. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of all manifestations of his service-connected lumbosacral strain with arthritis. Copies of all pertinent records should be provided to the examiner. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In this regard, the examiner must complete the corresponding VA disability benefits questionnaire (DBQ). If the Veteran reports flare-ups, the examiner should ask the Veteran to describe the factors that precipitate a flare-up and the frequency, duration, and severity of any flare-ups. The examiner should use that information to comment on the functional limitations caused by pain and any other associated symptoms. Such comments should include whether there was additional limitation of motion following repetitive use testing due to pain weakness, fatigability, etc. Any determination concerning this functional loss should be expressed in degrees of additional range of motion loss. The examiner is asked to specifically opine as to whether the Veteran's range of motion is limited such that it is the functional equivalent of ankylosis. A detailed rationale is requested for all opinions provided. 2. Obtain an addendum opinion from an appropriate clinician regarding the likely etiology of any diagnosed right toe disability. Copies of all pertinent records must be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled. Based on a review of the record (and examination, if needed), the examiner should answer the following: (a) Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed right big toe condition was incurred in or is otherwise related to the Veteran's active service from July 1976 until July 1982? The examiner should specifically consider the Veteran's statement that he injured his right toe in the same in-service incident where he sustained the now service-connected back disability. (b) Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed right big toe condition is proximately due to (caused by) the Veteran's service-connected disabilities? (c) Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed right big toe condition is aggravated (defined as any increase in disability) by any of the Veteran's service-connected disabilities? In answering the foregoing, the opinion provider should specifically consider and discuss muscle spasms and guarding in the back resulting in abnormal gait or abnormal spinal contour noted during the July 2021 VA back examination. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner's own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. 3. Confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Collins, 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.