Citation Nr: 21005734 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 10-48 178 DATE: February 2, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for migraine headaches is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from July 1987 to July 1990 and from January 1991 to April 1991, including service in the Persian Gulf War. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision issued by a VA Regional Office (RO). These issues were previously remanded by the Board in February 2014, September 2014 and most recently in September 2018. In the Board’s September 2018 remand, the examiner was asked to provide a causation and aggravation opinion for the Veteran’s current lumbar spine disability. The Board also asked the examiner to provide a direct nexus opinion for the Veteran’s migraine headaches to include an opinion as to whether his headaches were a manifestation of an undiagnosed illness or a medically unexplained chronic multi symptom illness (MUCMI). As will be discussed below, the resulting opinions were not responsive to the Board's directives and, therefore, further remand is required. See Stegall v. West, 11 Vet. App. 268, 271(1998). Entitlement to service connection for a lumbar spine disability is remanded. The Veteran contends that his lumbar spine disability was caused or aggravated by his service-connected pes planus (flat feet). The Veteran was most recently afforded a VA medical opinion in May 2020. The examiner opined that the Veteran’s service-connected pes planus with plantar fasciitis and heel spurs did not cause or aggravate his current lumbar spine disability. The rationale, however, found that “plantar fasciitis and heel spurs are not known to directly cause lumbar degenerative arthritis, bulging discs, radiculopathy or annular tears.” [Emphasis added]. Nowhere in the rationale does the examiner explain why the Veteran’s service-connected condition of pes planus was opined to not cause or aggravate his current lumbar spine disability. Although listed in the “opinion” portion of the report, its absence in the rationale renders it unclear whether the examiner truly considered whether the Veteran’s correct service-connected disability, namely pes plauns (flat feet), caused or aggravated any of his lumbar spine conditons. Clarification is therefore required. See Nieves-Rodrzguez v. Peake, 22 Vet App 295 (2008). The examiner, further, merely noted a lack of reports in the Veteran’s service treatment records (STRs) with no consideration of the Veteran’s lay statements describing symptoms since service or the medical literature submitted by the Veteran and his representative noting a possible relationship between pes planus and low back pain. As the Board specifically directed the examiner to address this literature in the prior, and a remand by the Board confers upon the claimant a legal right to substantial compliance with the remand order, the Board must insist on substantial compliance with such directives. See Stegall, 11 Vet. App. at 271. Entitlement to service connection for migraine headaches is remanded. The Veteran has contended that his current migraine headaches are the result of active duty service in the Persian Gulf and have progressively gotten worse since service. The Board notes, that the Veteran’s DD 214 and DD 215 establish that he served in the Southwest Asia Theater of operations during the Persian Gulf War. Hence, he is entitled to the presumptions applicable to claims by Persian Gulf veterans. As such, the Board, in its September 2018 remand, requested a VA examiner to opine whether or not the Veteran’s headaches were directly related to service, including whether they were a manifestation of an undiagnosed illness or medically unexplained chronic multi-symptom illness (MUCMI). In June 2016, the Veteran was afforded a medical opinion in which the examiner opined that the Veteran’s current migraine headaches were not directly related to service nor were they a manifestation of an undiagnosed illness or a MUCMI. However, the examiner never opined as to the etiology or pathophysiology of the Veteran’s headaches in relation to any exposure in Southwest Asia. The examiner only stated, “While lay statements provide important information they do not, in and of themselves, provide evidence of a diagnosis” and that STRs did not show an undiagnosed illness or a MUCMI. In short, the examiner’s medical opinion appears to be conclusory in nature without adequate supporting rationale and without evidence that the examiner fully considered the Veteran’s lay statements, to include testimony made during the July 2013 hearing about the onset of headache symptoms shortly after deployment. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (holding when an examiner fails to address lay evidence, and the Board doesn’t find the Veteran not credible or not competent to offer that evidence, the proper remedy is for VA to get a new exam). See also Horn v. Shinseki, 25 Vet. App. 231, 240-42 (2012) (stating that under caselaw “an unexplained conclusory opinion is entitled to no weight in a service-connection context”). As such, the Board finds the June 2020 examiner’s opinion to be inadequate for adjudicative purposes. Once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate. Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). Therefore, substantial compliance with the Board's September 2018 Remand directives has not occurred and the Veteran's claim must once again be remanded for further development. The Board notes, the Veteran has further asserted that his migraine headaches may have been caused by exposure to “nerve agents” as the result of a scud missile attack, he experienced during service. This assertion has not been raised by the Veteran nor reasonably by the record prior to the Veteran’s submitted statement dated in July 2020. Therefore, while these issues are remanded on other grounds as indicated above, the RO should also develop this new theory of entitlement to service connection as it deems appropriate. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2019 to the Present. 2. Arrange for an opinion by an appropriate clinician for the purpose of determining the nature and etiology of the Veteran’s lumbar spine disability. A new examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to the following: a. Whether it is as likely as not (a probability of 50 percent or greater) that any current lumbar spine disability had its origin in service or is related to the Veteran’s active duty service. b. Whether it is as least as likely as not that any current lumbar spine disability was caused by the Veteran’s service-connected pes planus with plantar fasciitis and heel spurs. c. Whether it is as least as likely as not that any current lumbar spine disability was aggravated beyond its natural progression by the Veteran’s service-connected pes planus with plantar fasciitis and heel spurs. The examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310 (b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). In developing his/her opinion, the examiner is asked to consider the medical literature and private treatment records submitted by the Veteran, to include the articles titled: The correlation between pes planus and anterior knee or intermittent low back pain, by Kosashvili Y, et. Al., internet article: What is Flatfoot, Fallen Arches by Charles J. Meyers, DC, internet article: Spinal Biomechanics: What Role Do the Feet Play?, and internet article: Physio Works-Physiotherapy Brisbane; a July 2009 VA podiatrist record where the treating podiatrist stated: “The vet has had foot pain for many years, and it would be reasonable to conclude that it has contributed to his back and hip pain.”; and December 2011 and July 2013 statements made by Dr. L.Q. that the Veteran had an altered gait and that his foot problems contributed to his back problems. The rationale for any opinion expressed should be provided. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s migraine headache condition is at least as likely as not related to any toxin exposure during his Persian Gulf War service, to include exposure to “nerve agents” as the result of a scud missile attack, he experienced during service. The clinician is asked to consider all lay statements of the Veteran, including his testimony during the July 2013 hearing, regarding the onset of headaches shortly after returning from deployment to the Persian Gulf. (Continued on the next page)   The clinician should consider all medical and lay evidence of record and offer a complete rationale for each opinion expressed. If the clinician concludes that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so should be provided. 4. Thereafter, and after any further development deemed necessary, the issues on appeal should be readjudicated, with consideration of all evidence of record. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.