Citation Nr: 21006637 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 14-14 918 DATE: February 4, 2021 REMANDED Entitlement to service connection for a lumbar spine disability, to include as secondary to a service-connected left leg disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from September 1967 to June 1972. He is in receipt of the Combat Action Ribbon for combat service in the Republic of Vietnam. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board has previously remanded this matter twice, in September 2019 and August 2020, for additional development. Unfortunately, as explained below, the Board is not satisfied that there was substantial compliance with its prior remand. Therefore, the appeal must be remanded once again. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a lumbar spine disability, to include as secondary to a service-connected left leg disability, is remanded. The Veteran seeks service connection for a lumbar spine disability, which has been diagnosed as degenerative arthritis. He asserts that his disability is the result of an in-service accident in which his left tibia and fibula were fractured by a forklift. He has stated that when the forklift was removed from his leg, he fell on his back. Then, in the hospital he was given a spinal block anesthesia with a long needle; he contends he has experienced pain in his spine ever since. Pursuant to the August 2020 remand, the Veteran underwent a VA thoracolumbar spine examination in November 2020. In the remand, the Board specifically instructed that a medical opinion be obtained to address the theory of entitlement to service connection on a secondary basis, to include as a result of altered gait or posture due to the Veteran’s service-connected left leg disability. Upon examination, the VA examiner opined that the Veteran’s lumbar spine disability is less likely than not proximately due to or the result of the service-connected left leg condition. To support this finding, the examiner explained that lumbar arthritis and residuals of a tibia and fibula fracture are separate entities and not medically related. The examiner also opined that it is less likely than not that the lumbar spine disability has been aggravated by any service-connected disability; however, the examiner provided no medical rationale for this conclusion. Finally, the examiner provided a negative nexus opinion on a direct basis, noting that the service treatment records are silent for a back injury and the available medical evidence does not establish chronicity of care to support a chronic back condition. The Board finds the August 2020 opinion to be inadequate because the examiner’s determinations are not supported by sufficient medical rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (a mere conclusory opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to a medical opinion). With regard to secondary service connection, the examiner did not sufficiently address the matter of aggravation, see El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013), nor did she address the Board’s directive to consider the potential impact of altered gait or posture due to the Veteran’s service-connected left leg condition. Finally, in providing an opinion on direct service connection, the examiner relied solely on an absence of contemporaneous medical evidence and did not consider the Veteran’s lay statements with regard to an in-service onset and continuity of symptoms. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). In light of the above, the Board finds that the Veteran’s claim must be remanded once again because the RO did not comply with the Board’s prior remand directive to obtain an adequate medical opinion on the Veteran’s behalf.  See Stegall, 11 Vet. App. at 268.  On remand, an addendum medical opinion must be obtained that is adequate for the Board to make an informed decision on the Veteran’s claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009).   Accordingly, the matter is REMANDED for the following action: Forward the Veteran’s claims file to a qualified VA examiner (M.D.) who has not yet provided an opinion in this case to provide an addendum opinion. A full VA examination should not be scheduled unless deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, to include a copy of this REMAND, and that review must be noted in the report. Thereafter, the examiner is asked to provide a fully-articulated medical opinion addressing the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s lumbar spine disability was incurred in or caused by an in-service injury, illness, or event? In responding to the above, the examiner must specifically address the Veteran’s contentions that his current lumbar spine disability is a result of the in-service forklift accident in which he fractured his left leg – first, that he fell on his back after his left leg was freed from the forklift; and second, that he has experienced back pain ever since receiving a spinal block anesthesia with a long needle when he underwent surgery on his leg. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s lumbar spine disability was caused by his service-connected left leg disability (residuals of a tibia and fibula fracture), to include as due to altered gait or posture? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s lumbar spine disability was aggravated by (increased in severity beyond its natural progression) his service-connected left leg disability (residuals of a tibia and fibula fracture), to include as due to altered gait or posture? The examiner is advised that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. It is imperative that the medical opinion reconcile all available evidence of record, to include the Veteran’s lay statements, service treatment records, post-service medical records, including all prior VA examinations and medical opinions, and any other pertinent evidence of record. The examiner is advised that the Veteran’s lay statements of record must be considered and weighed in making the determination as to whether a nexus exists between the claimed disability and military service. It should be noted that a lack of documented treatment for the claimed disability in service, while probative, cannot serve as the sole basis for a negative finding. The examiner must provide a complete rationale for any opinions offered, citing to the examiner’s own expertise, medical principals, and/or evidence in the record, when necessary, to support the conclusion reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. The Board reminds the examiner that failure to comply with the examination directives outlined herein will render the medical opinion inadequate and will result in further remand of the Veteran’s claim. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Melissa Barbee, 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.