Citation Nr: 21005965 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-24 969 DATE: February 3, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to as secondary to service-connected disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1967 to March 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2009, the Veteran initially filed a claim of entitlement to service connection for depression, claimed as a nervous condition. In May 2012, the Veteran filed a claim of entitlement to service connection for depression and anxiety, secondary to a service-connected condition, and a separate claim of entitlement to service connection for PTSD. Based upon the evidence of record, the Board has consolidated these claims, and characterized the Veteran’s claim as entitlement to service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Entitlement to service connection for a lumbar spine disability is remanded. In April 2018, the Board remanded this issue for a VA examination report from June 2013 to be associated with the claims file. This evidence was included in the record. The Veteran contends he has a lumbar spine disability that is due to service, or secondary to service-connected left ankle disability. Specifically, he contends he was injured in service, or was injured after service as a result of his left ankle disability causing a fall, or that his left ankle disability results in altered gait which caused or aggravated lumbar spine disability. See April 2013 Statement; see also June 2014 VA Form 9. In this case, VA obtained a medical opinion in October 2012 and an examination and opinion in June 2013 addressing his contentions. The October 2012 examiner opined there was no anatomical or physiological relationship between his service-connected left ankle disability and his lumbar spine, but they did not address his assertions of altered gait. See October 2012 Opinion. The October 2013 examiner noted a history of left fibula fracture in service and August 2017 medical records show the Veteran fractured the left tibia shaft. See August 2017 Hospitalization. The June 2013 VA examiner opined that the Veteran’s degenerative disc disease (DDD) is due to the natural aging process and is not due to service. See June 2013 Examination. The Board finds these opinions address direct service connection and proximate causation, but do not address aggravation. In light of the VA examiner’s failure to address aggravation, and the opinions cannot be considered adequate to the extent they ignore aggravation of lumbar spine DDD by service-connected left ankle disability. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-141 (2013). Accordingly, a new VA medical opinion must be obtained, which properly addresses the etiology of the Veteran’s lumbar spine DDD and whether it was aggravated (increased beyond the normal progression of the disease) by service-connected left ankle disability, including any associated gait. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to service connection for an acquired psychiatric disorder, to as secondary to service-connected disability is remanded. In April 2018, the Board remanded this issue for a VA examination to address the nature and etiology of the Veteran’s mental health condition, to include consideration of both direct and secondary service connection. The Veteran contends that he has an acquired psychiatric disorder that is caused or aggravated by his service-connected left ankle disability or was incurred in service. See June 2014 VA Form 9. The Veteran submitted a June 2017 private examination and opinion that he manifests PTSD and depressive disorder that are due to exposure to trauma and “medical and pain” conditions. See June 2017 Opinion. The Veteran underwent a VA psychiatric examination in May 2012 and November 2012, at which time he was diagnosed with depressive disorder, not otherwise specified. The examiners opined the Veteran’s depression was less likely than not related to service or service-connected left ankle. The May 2012 examiner opined that depressive disorder NOS was not due to service or service-connected left ankle disability because both conditions are separated in tie, place and etiology. See May 2012 Examination. The November 2012 examiner opined there was no evidence the Veteran’s left ankle disability caused his depressive disorder. See November 2012 Opinion. While the May and November 2012 opinions address direct service connection and proximate causation, they do not explicitly address aggravation of depression disorder by left ankle disability. The Board remanded the appeal in April 2018 for a VA examination to address whether the Veteran manifests PTSD or other acquired psychiatric disorder, and whether his claimed disability was due to service, or secondary to service-connected disability. The Veteran was examined in October 2018 and the examiner found the Veteran did not meet the criteria for a diagnosis of PTSD, but that he did meet the criteria for a diagnosis of depressive disorder. The most recently obtained opinion does not address secondary service connection as directed by the Board in the April 2018 remand. See October 2018 Opinion. Given the Veteran’s contentions and the June 2017 opinion attributing psychiatric disorder to medical and pain conditions, the Board finds an addendum opinion is necessary to adequately address the Veteran’s contentions his depressive disorder is secondary to his service-connected left ankle disability. Barr, 21 Vet. App. at 312. The matters are REMANDED for the following action: 1. Obtain any outstanding VA medical records. 2. Obtain an opinion as to whether it is at least as likely as not that the Veteran’s lumbar DDD has been aggravated beyond its natural progression by service-connected left ankle disability, including any associated gait changes. If the Veteran’s current degenerative joint disease of the lumbar spine has been aggravated (increased beyond the normal progression of the disease) by his service-connected left ankle disability, including any associated gait changes, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. A rationale for any opinion offered should be provided. 3. Obtain an addendum medical opinion from a qualified clinician regarding whether it is at least as likely as not that the Veteran’s acquired psychiatric disorder is aggravated (increased beyond the normal progression of the disease) by his service-connected left ankle disability, including any associated gait changes. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. In offering such opinion, the examiner should consider the Veteran’s contentions and the June 2017 opinion that he manifests PTSD and depressive disorder that are due to exposure to trauma and “medical and pain” conditions. A rationale for any opinion offered should be provided. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Trickey 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.