Citation Nr: 21077056 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-25 212 DATE: December 28, 2021 REMANDED Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected arthritis in the left ankle, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1967 to December 1968 during the Vietnam era. He passed away in June 2020. The Appellant, the Veteran's spouse, was subsequently recognized as a substitute claimant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Board denied this matter. The Appellant appealed to the United States Court of Appeals for Veterans Claims (the Court). In January 2021 the Court granted a Joint Motion for Remand (JMR) that moved to vacate the November 2019 Board decision that denied entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected arthritis in the left ankle. Prior to his passing, the Veteran claimed that his lumbar spine disorder was caused by an infected epidural injection that he received as part of a during a July 2011 ankle surgery. The Parties agreed in the JMR that the February 2017 medical opinion, on which the Board relied, gave no rationale regarding the finding that the Veteran did not receive an epidural injection for his prior ankle surgery. As such, a remand is warranted to fulfill VA's duty to assist because once VA undertakes an effort to provide a medical opinion, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Further, the Veteran argued that his altered gait is a result of his service-connected ankle condition and due to his altered gait, he developed severe lumbosacral disc disease with a lateral disc herniation to the right L4-L5. See May 2017 Form 9. The October 2014 medical opinion that addressed aggravation was provided prior to Ward v. Wilkie, 31 Vet. App. 233 (2019) in which the Court determined that service connection is warranted for any incremental increase (temporary worsening) in disability and additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence." Thus, another medical opinion is needed to address incremental increase rather than permanent worsening. The matters are REMANDED for the following action: 1. Obtain a medical opinion from a qualified medical professional that addresses the issues raised in this appeal. A copy of this REMAND and the claims file should be provided to and reviewed by the opinion provider. Following a review of the record, the opinion provider should address the following: a) Is it at least as likely not (a 50 percent or greater probability) that the Veteran's lumbar spine disorder is the result of his military service, to include the in-service fall that led to his service-connected left ankle disability)? b) Is it at least as likely not (a 50 percent or greater probability) that the Veteran's lumbar spine disorder caused or aggravated by his service-connected left ankle disability, to include the July 2011 surgery on his left ankle and any associated complications? The opinion provider should note that causation and aggravation are two separate inquires and both must be addressed. Furthermore, the Court has held that service connection on the basis of aggravation is warranted for any incremental increase in disability, regardless of its permanence, due to the service-connected disability. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. The opinion provider must also consider and discuss the Veteran's assertions that his altered gait is a result of his service-connected ankle condition and due to his altered gait, he developed degenerative arthritis of the spine; as well as his assertion that his lumbar spine disorder is related to an infected epidural that he received during a July 2011 left ankle surgery. Furthermore, the opinion provider's attention is drawn to the VA treatment records that seemingly associated the Veteran's epidural abscess to his July 2011 surgery and an epidural block he received in connection with that sugery. See January 2012 VA Manager Note. Rationale for the requested opinion shall be provided. If the opinion provider concludes that an opinion cannot be offered without resort to mere speculation, the opinion provider must address whether research in the medical literature might assist him/her in providing the medical opinion requested in this matter, and if so, such research in the medical literature must be conducted. The opinion provider must also indicate whether any use of the phrase "without resorting to mere speculation" reflects the limitations of knowledge in the medical community at large as opposed to the limits of his/her knowledge and expertise in particular. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Smith, 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.