Citation Nr: 21006191 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 10-13 670 DATE: February 3, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disorders (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1971 to October 1974. These issues initially came to the Board from decisions of the Agency of Original Jurisdiction (AOJ), issued in November 2008 (lumbar spine claim) and in May 2009 (TDIU). The AOJ initially treated the lumbar spine claim as a request to reopen a previously denied claim. In November 2013, after finding that the Veteran had submitted new and material evidence, the Board reopened and remanded the lumbar spine claim together with the related TDIU claim. The Board remanded both claims for further development in June 2016 and, most recently, in September 2019. 1. Entitlement to service connection for a lumbar spine disability is remanded. In its most recent remand, the Board instructed the AOJ to obtain a medical opinion on the probability that the Veteran’s current lumbar spine disability is related to service. The Board asked the post-remand examiner to prepare opinions addressing two potentially relevant theories of entitlement: (1) the probability that a lumbar spine disability had its onset in service or was otherwise related to an in-service disease, injury, or event; and (2) secondary service connection – i.e., the probability that the disability was proximately due to, or aggravated by, a separate disability which is service-connected, including the Veteran’s service-connected knee and ankle disabilities. See 38 C.F.R. § 3.310. The AOJ obtained the requested in January 2020 opinions from a nurse practitioner who answered both questions in the negative. To explain these conclusions, the examiner explained that it was unlikely that the Veteran’s degenerative arthritis of the lumbar spine had its onset in service because his service treatment records did not mention this condition. It was more likely, the examiner continued, that this disability was the result of the normal aging process. In response to the Veteran’s suggested theory of secondary service connection, the examiner wrote that, “[the] Veteran was diagnosed with degenerative changes of the lumbar spine in 2001. This diagnosis occurred 42 years after his military discharge. The degenerative changes of the lumbar spine [have] followed the normal progression of the disease and the aging process.” The examiner was correct that the oldest available medical evidence indicating degenerative changes in the lumbar spine is from 2001. And when assessing the merits of a claim for service connection, it is appropriate to consider the passage of a lengthy period of time during which the Veteran has not complained of the claimed disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). But the Veteran in this case was discharged from active duty in 1974, which means that the initial diagnosis occurred only 27 years after his separation from service. When VA prepares a medical opinion, “[the Secretary] must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.” Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion may be inadequate when it relies on an inaccurate factual premise. Cf. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Because the January 2020 opinion relies on the inaccurate premise that the Veteran was not diagnosed with the claimed disability until 42 years after his discharge from active duty, the opinion is inadequate. Although the Board regrets the need for further delay, it must remand this case again so that the AOJ can obtain an adequate opinion. It would be useful if the post-remand examiner would address two specific possibilities raised by the record concerning the issue of secondary service connection pursuant to 38 C.F.R. § 3.310. A friend of the Veteran wrote a letter on his behalf describing his symptoms and suggesting that changes in his gait associated with his service-connected knee and ankle disabilities caused him to develop his low back pain: “He has been compensating for years due to knee and ankle injuries or weakness. [He] ambulates with decreased heel strike, increased medial [weight] bearing and decreased swing phase. After several years of compensating and abnormal gait, his structures have changed, causing increased pressure and stress to the low back and pelvic region. . . . This results in low back and hip pain.” In a January 2008 written statement, the Veteran identified the author of this letter as a physical therapist. A December 2001 examination report described the Veteran as walking “with a waddling gait and slight forward list of his trunk.” A more recent report, from April 2009, indicated an antalgic gait with poor propulsion. According to the relevant examination report, the Veteran told the December 2001 VA examiner that, in 1998, he was walking down his driveway “when apparently his knee buckled and he fell down sustaining injury to his right ankle and right knee. He also hurt his lower back.” In November 2001, he testified at a hearing before a decision review officer and, consistent with his statement to the examiner, said that “my lower back has been bothering me since [the fall]. . .” When the AOJ obtains a new medical opinion addressing the question of whether secondary service connection is appropriate, it would be useful for the examiner to specifically discuss both theories. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disorders (TDIU) is remanded. The appeal of the denial of a TDIU rating is inextricably intertwined with the claim for service connection for a lumbar spine disability because the service connection claim, if resolved in his favor, could potentially affect whether the Veteran is eligible to receive a TDIU rating. The appropriate remedy when a pending claim is inextricably intertwined with an issue on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001); Henderson v. West, 12 Vet. App. 11, 20 (1998). The Board will remand the Veteran's TDIU appeal pending the adjudication of the intertwined issue. The matters are REMANDED for the following action: 1. Obtain and associate with the electronic claims file copies of all records of the Veteran’s VA treatment since April 2019. 2. Send the claims file to an appropriate medical professional to obtain an opinion concerning the etiology of the Veteran’s lumbar spine disability. If the examiner believes that an in-person examination is needed before he or she can provide the requested opinion, an in-person examination should be arranged. After thoroughly reviewing the claims file, this remand, and, if necessary, after the new in-person examination is complete, the examiner should respond to these questions: a) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s lumbar spine disability had its onset during active duty service is otherwise related to any in-service disease, injury or event? b) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s lumbar spine disability is caused by a service-connected disability, including the Veteran’s right knee, left knee and right ankle disabilities? c) Is it at least as likely as not (50 percent probability or greater) that the lumbar spine disability has been aggravated by a service-connected disability, including the Veteran’s right knee, left knee and right ankle disabilities? The examiner should provide a complete rationale explaining the medical reasons for his or her response to each of these questions. The examiner is advised that, the 2001 diagnosis of degenerative changes in the lumbar spine was 27 years after his discharge from active duty and the statement of the January 2020 examiner that there was a gap of 42 years between the Veteran’s separation from service and his initial diagnosis is incorrect. IN RESPONDING TO QUESTIONS 2(b) and 2(c) (addressing secondary service connection), THE EXAMINER SHOULD ADDRESS A LETTER FROM R.F., IDENTIFIED BY THE VETERAN AS A PHYSICAL THERAPIST, SUGGESTING THAT CHANGES IN THE VETERAN’S GAIT ASSOCIATED WITH HIS KNEE AND ANKLE DISABILITEIS CAUSED OR AGGRAVATED HIS BACK PAIN. THE EXAMINER IS ADVISED THAT EARLIER EXAMINATION REPORTS DESCRIBE A “WADDLING” AND AN “ANTALGIC” GAIT. THE EXAMINER SHOULD ALSO ADDRESS THE VETERAN’S SUGGESTION, DESCRIBED IN A DECEMBER 2001 EXAMINATION REPORT, THAT HE DEVELOPED HIS BACK PAIN AFTER HIS SERVICE-CONNECTED LEFT KNEE “BUCKLED” CAUSING HIM TO FALL AND INJURE HIS BACK. 3. The AOJ should review the information obtained as a result of the efforts described in these instructions and consider the potential need for any development which appears necessary to decide the Veteran’s related claim for TDIU. 4. The AOJ must ensure that the opinion requested above complies with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective action. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.