Citation Nr: A21019131 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 210126-131386 DATE: December 1, 2021 REMANDED The issue of service connection for a low back disability, to include as secondary to a service-connected degenerative joint disease of the left foot (left foot disability), is remanded. The issue of service connection for a left hip disability, to include as secondary to a service-connected left foot disability, is remanded. The issue of a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1969 to March 1971. Rating decisions were issued under the legacy system in February 2007, January 2015, and December 2016. The Veteran appealed the issues of service connection for left hip disability, low back disability, and entitlement to a TDIU to the Board. In June 2018, the Board, in pertinent part, denied the issues of service connection for left hip disability, low back disability, and entitlement to a TDIU. The Veteran appealed the portion of the June 2018 Board decision that denied the issues of service connection for left hip disability, low back disability, and entitlement to a TDIU to the United States Court of Appeals for Veterans Claims (Court). In a June 2019 Order, the Court granted a May 2019 Joint Motion for Remand (Joint Motion), vacating the portion of the June 2018 Board decision that denied the issues of service connection for left hip disability, low back disability, and entitlement to a TDIU and remanding it for action consistent with the terms of the Joint Motion. In December 2019, the Board remanded the issues of service connection for left hip disability, low back disability, and entitlement to a TDIU for further development. In July 2020 the agency of original jurisdiction (AOJ) issued a supplemental statement of the case (SSOC). The Veteran opted the claims into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the July 2020 SSOC. In December 2020, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the July 2020 SSOC. In the January 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the December 2020 HLR rating decision on appeal. 38 C.F.R. § 20.301. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is remanding the claim of entitlement to service connection for left hip disability for further development, this additional evidence will be considered by the RO in the adjudication of those claims. 1. The issue of service connection for a low back disability, to include as secondary to a service-connected left foot disability, is remanded. 2. The issue of service connection for a left hip disability, to include as secondary to a service-connected left foot disability, is remanded. The Veteran contends that his low back and left hip disabilities are due to his military service and are secondary to his service-connected left foot disability. See Veteran's claims (August 2006; May 2015). In the May 2019 Joint Motion, the Court vacated the Board's June 2018 decision denying service connection for left hip and low back disabilities, on the basis that the Board relied upon inadequate medical opinions regarding whether the Veteran's service-connected left foot disability aggravated the claimed conditions. Specifically, the parties to the Joint Motion explained that the unfavorable aggravation opinion of record was predicated at least in part on the fact that the Veteran demonstrated normal gait and balanced stride during the physical examination. The parties explained that the examiner failed to address medical records indicating that the Veteran presented with abnormal gait (see podiatry notes, November 2007 and October 2006); unsteady gait (see VA examination, January 2015); and antalgic gait with notation of pain in the left foot and ankle (see Miami Valley Hospital, February 1996). The parties to the Joint Motion did not find error with the medical opinions pertaining to direct service connection and secondary service connection, that is, whether the service-connected left foot disability caused the claimed disabilities. Accordingly, the adequacy of the medical opinions regarding whether the service-connected left foot disability aggravated the claimed disabilities is the central issue in this case. In December 2019, the Board remanded the appeal to obtain an adequate medical opinion regarding whether the service-connected left foot disability aggravated the Veteran's left hip and low back disabilities. In a January 2020 opinion, a VA examiner opined that it is less likely than not that the Veteran's service-connected left foot disability aggravated his current left hip and low back disabilities. The examiner acknowledged the above referenced instances of abnormal gait, unsteady gait, and antalgic gait, but found no aggravation on the basis that the February 2018 VA foot examination report shows no abnormal biomechanical loading. The Veteran, through his representative, argues the January 2020 addendum opinion is inadequate and the Board agrees. Specifically, while the examiner acknowledged the aforementioned instances of abnormal gait, the examiner failed to explain how they are not suggestive of aggravation. Instead, her opinion appears to have been based solely upon the absence of biomechanical loading in the left foot, without explaining whether biomechanical loading is the only mechanism by which the left foot disability could aggravate the claimed left hip and low back disabilities. Additionally, the examiner appeared to base her opinion on the results of the February 2018 VA foot examination, rather than the medical evidence throughout the appeal period. As a result, the issues of service connection for low back and left hip disabilities are remanded to correct a duty to assist error that occurred prior to the July 2020 SSOC decision on appeal. The AOJ obtained a January 2020 medical opinion that is flawed prior to the July 2020 SSOC. As the January 2020 opinion is flawed, a remand is necessary to schedule the Veteran for a VA examination, and for an examiner to address whether the Veteran's left hip and low back disabilities are aggravated by his left foot disability. Additionally, the Board finds that in this case, a VA examination is necessary because the January 2020 examiner questioned whether the Veteran had abnormal biomechanical loading, which could be pertinent as to whether the Veteran's left hip and low back disabilities are aggravated by his left foot disability. 3. The issue of a TDIU is remanded. The Veteran claims that he is unable to maintain gainful employment due to his left foot, low back, and left hip disabilities. See Veteran's application for increased compensation based on unemployability (September 2017). As indicated above, a January 2020 VA opinion is flawed, and a VA examination is necessary to determine whether the Veteran has or had abnormal biomechanical loading and if so, whether it has bearing on whether Veteran's left hip and low back disabilities are aggravated by his left foot disability. As such, a decision on the issue of a TDIU is premature until an adequate opinion is obtained on the issues of entitlement to service connection for a left foot and low back disability as the issues are inextricably intertwined. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination(s) regarding his claims of service connection for low back and left hip disabilities. The examiner should review the entire claims file, before answering the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's low back disability was aggravated (worsened) by his service-connected left foot disability. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left hip disability was aggravated (worsened) by his service-connected left foot disability. (c.) Whether the Veteran has or had abnormal biomechanical loading during the appeal period; and if so, whether it has bearing on whether the Veteran's left hip and low back disabilities are aggravated by his left foot disability. Please explain why or why not. The examiner must address the records indicating that the Veteran presented with abnormal gait (see podiatry notes, November 2007 and October 2006); unsteady gait (see VA examination, January 2015); and antalgic gait with notation of pain in the left foot and ankle (see Miami Valley Hospital, February 1996). The examiner must provide a complete rationale for each opinion. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Castillo, 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.