Citation Nr: 21006719 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 11-32 190 DATE: February 5, 2021 REMANDED Entitlement to service connection for a lumbosacral spine disability, to include degenerative disc disease and degenerative arthritis, is remanded. Entitlement to service connection for a right foot disability, to include pes planus, is remanded. Entitlement to service connection for a left foot disability, to include pes planus, is remanded. REASONS FOR REMAND The Veteran had active service from September 1981 to November 1982. The Veteran appeared at a November 2015 hearing before the undersigned Veterans Law Judge sitting at the Winston Salem, North Carolina, Regional Office. The hearing transcript is of record. 1. Entitlement to service connection for a lumbosacral spine disability, to include degenerative disc disease and degenerative arthritis, is remanded. Service connection will be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disability has aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection has been established for right total knee replacement residuals, left total knee replacement residuals, right knee scar residuals, a left knee scar, posttraumatic stress disorder (PTSD), a left shoulder disability, and pseudofolliculitis barbae. In its November 2019 Remand instructions, the Board of Veterans’ Appeals (Board) directed that the Veteran be schedule for a Department of Veterans Affairs (VA) spine examination. The examiner was requested to “opine as to whether it is at least as likely as not (50 percent or greater probability) that any back disability is causally related to active service or any event, injury, or disease during service;” “whether it is at least as likely as not (50 percent or greater probability) that any back disability is proximately due to or caused service connected knee disabilities or any altered gait due to the knee disabilities;” and “whether it is at least as likely as not (50 percent or greater probability) that any back disability has been aggravated (increased in severity beyond the natural progress of the disorder) by service connected knee disabilities, or any altered gait due to the knee disabilities.” The Veteran subsequently attended two VA spine examination. The report of a January 2020 spine evaluation conducted for VA states that the Veteran was not examined. The evaluation was based on a review of the record. The examiner diagnosed “lumbar strain, degenerative arthritis of the lumbar spine, stenosis, “s/p lumbar laminectomy,” and lumbar radiculopathy. The examiner concluded that “the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness” and “the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of Veteran’s service connected condition.” The physician’s assistant commented that: “STRs revealed documented complaints of back pain, on one occasion only, August 1992;” “there is no evidence to show that the acute back pain during service is related to the current diagnoses of lumbar strain, degenerative arthritis of the lumbar spine, stenosis, s/p lumbar laminectomy and lumbar radiculopathy;” “there is no credible evidence to suggest that an injury or disease of one lower extremity (Veteran’s SC right knee) would have any significant impact on the lumbar spine, unless the injury to the knee resulted in major muscle or nerve damage causing partial or complete paralysis of the damaged leg, and/or shortening of the injured lower extremity resulting in a limb length discrepancy of more than four or five centimeters so that the individual’s gait pattern has been altered to the extent that clinically there is an obvious lurching type gait (a significant limp);” and “the Veteran’s SC right knee condition is not of the severity to result in a lumbar spine/back condition.” The physician’s assistant did not note or otherwise address the relationship between the service-connected left total knee replacement residuals and the diagnosed lumbar spine disabilities. The Board observes that, while the examiner stated that an August 1992 service medical record noted low back pain, the Veteran’s period of active service was from September 1981 to November 1982. Because of the cited deficiencies, the Board finds that the January 2020 evaluation is incomplete and does not comply with the Board’s Remand instructions. The report of a November 2020 spine examination conducted for VA states that the Veteran was diagnosed with lumbosacral spine degenerative disc disease, degenerative arthritis, and hemilaminectomy and discectomy residuals. The examiner concluded that “the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness” and “the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of Veteran’s service connected condition.” The nurse-practitioner commented that: “the Veteran’s C-file has no medical history of back injury or trauma during service period, nor is there history of complaints made by Veteran about lower back pain or discomfort;” “the Veteran’s claimed lumbar spine stenosis, s/p L5-S1 hemilaminectomy/discectomy and DDD condition is less likely to be aggravated beyond its natural progression by the service-connected s/p right knee arthroscopy with DJD;” “the two conditions are not medically related;” “post service medical records indicate the development of lumbar spine stenosis, s/p L5-S1 hemilaminectomy/discectomy and DDD to be in 1999, eight years after discharge and 11 years after right knee condition, and is most likely the result of the Veteran’s post service occupation as a plumber’s helper where he was required to lift heavy object and dig holes in ditches leading to increased wear and tear to the lumbar spine;” “the lumbar spine stenosis, s/p L5-S1 hemilaminectomy/discectomy and DDD condition is a separate entity entirely from the s/p right total knee replacement and unrelated to it;” “a thorough review of medical literature failed to demonstrate a causal relationship between the two conditions:” and “there is no clear evidence to suggest that the service-connected right knee disabilities would have any significant impact on the Veteran’s lumbar spine condition.” The nurse-practitioner did not note or otherwise address the relationship between the service-connected left total knee replacement residuals and the diagnosed lumbar spine disabilities. Because of the cited deficiencies, the Board notes that the November 2020 evaluation is incomplete and does not comply with the Board’s Remand instructions. VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). When VA obtains an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Agency of Original Jurisdiction’s compliance with the Board’s remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that further VA spine examination is necessary. 2. Entitlement to service connection for a bilateral foot disability, to include pes planus, is remanded. The report of the March 1981 physical examination for service entrance states that the Veteran was diagnosed with “moderate pes planus.” The report does not indicate whether the diagnosed pes planus involved both feet. A veteran who served after December 31, 1946, is presumed to be in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious and manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in the examination reports are to be considered as noted. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service. Where the evidence shows that there was an increase in disability during service, there is a presumption that the disability was aggravated by service. To rebut the presumption of aggravation, there must be clear and unmistakable (obvious or manifest) evidence that the increase in severity was due to the natural progress of the disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The presumption of aggravation is not applicable unless the preservice disability underwent an increase in severity during service. Falzone v. Brown, 8 Vet. App. 398, 402 (1995); see also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (which holds that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat veteran to establish an increase in disability). At the November 2015 Board hearing, the Veteran testified that he experienced significant bilateral foot pain throughout active service associated with road marches and was treated by service medical personnel for the foot complaints. In November 2019 Remand instructions, the Board directed that the Veteran should be schedule for a foot examination. The examiner was requested to “opine whether it is clear and unmistakable (undebatable) that the pes planus was not aggravated during service;” “cite to any evidence that supports that opinion;” and “provide a rationale for all opinions and must demonstrate full consideration of the Veteran’s lay statements regarding continued care and disability.” The report of a September 2020 foot examination conducted for VA diagnosed bilateral pes planus. The examiner concluded that “the claimed condition bilateral pes planus is less likely than not incurred in or caused by in service illness, event, or injury” and “the claimed condition of bilateral pes planus, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in service illness, event, or injury.” The nurse-practitioner commented that “enlistment exam dated 03/11/1981 notes moderate pes planus;” “document failed to support any further foot injuries and complaints during service;” “given the length of time in service (09/1981-11/1982) and the length of time the Veteran has been out of service, there is no clear evidence that the bilateral pes planus was a progression during service; and “therefore, the claimed condition of bilateral pes planus, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service illness, event, or injury.” The examiner did not note or otherwise address the Veteran’s competent testimony as to experiencing recurrent foot pain throughout active service. Because of the cited deficiency, the Board notes that the examination report is incomplete and does not comply with the Board’s Remand instructions. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA spine examination, conducted by a medical doctor, to assist in determining the current nature of any identified lumbosacral spine disability and any relationship to active service and the service-connected disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all lumbosacral spine disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified lumbosacral spine disability had its onset during active service or is related to any incident of service. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified lumbosacral spine disability is due to or the result of the service-connected disabilities, to include right total knee replacement, left total knee replacement, any associated gait abnormalities, and the other service-connected disabilities. (d) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified lumbosacral spine disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by the service-connected disabilities, to include right total knee replacement, left total knee replacement, any associated gait abnormalities, and the other service-connected disabilities. 2. Schedule the Veteran for a VA foot examination conducted by a medical doctor to assist in determining the nature and etiology of any identified foot disabilities and any relationship to active service. The examiner must review the record, including the Veteran’s testimony on appeal, and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all foot disabilities found, to include any pes planus. (Continued on the next page)   (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified foot disability had its onset during active service or is related to any incident of service. (c) Opine whether it is clear and unmistakable that preexisting pes planus was not aggravated (permanently increased in severity beyond the natural progress of the disorder) during active service. The examiner should specifically address the Veteran’s testimony that he experienced recurrent foot pain throughout active service. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Hutcheson, 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.