Citation Nr: 21009442 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 10-00 283A DATE: February 22, 2021 REMANDED Service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1967 to March 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2014, the Board denied the Veteran’s claim for service connection for a low back disability, and the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In an April 2015 Joint Motion for Remand (Joint Motion), the parties moved the Court to vacate the Board’s June 2014 decision, and in an April 2015 order, the Court granted the Joint Motion and remanded the claim for action consistent with the terms of the Joint Motion. In March 2017, the Board again denied the Veteran’s claim for service connection for a low back disability, and the Veteran appealed that decision to the Court. In a January 2018 Joint Motion, the parties moved the Court to vacate the Board’s March 2017 decision, and in a January 2018 order, the Court granted the Joint Motion and remanded the claim for action consistent with the terms of the Joint Motion. The Board remanded the claim for additional development in June 2018 and March 2020. The case has been returned to the Board for further appellate action. 1. The claim for service connection for a low back disability is remanded. In the April 21015 Joint Motion, the parties agreed that a December 2013 VA examiner’s opinion that the Veteran’s current low back disability was not caused or aggravated by his service-connected knee disabilities was inadequate because the examiner’s rationale only discussed causation, not aggravation. See Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). In the January 2018 Joint Motion, the parties agreed that an August 2016 VA examiner’s opinion that the Veteran’s current low back disability was not caused or aggravated by his service-connected hip or knee disabilities or radiation used to treat his service-connected prostate cancer was inadequate because statements made by the VA examiner “display a less-than-complete review of the record.” Specifically, the parties indicated that the VA examiner did not appear to consider a September 1978 VA examination report showing a complaint of back pain, a January 2006 x-ray report showing mild or early degenerative osteoarthritis with small marginal osteophytes, or a March 2016 VA treatment record noting a history of low back pain “aggravated by knee problems.” In June 2018, the Board remanded the claim in order to obtain new medical opinions from a VA spine surgeon. In July 2019, the Veteran underwent another VA back examination. However, because the requested opinions were provided by a general practice nurse practitioner, the claim was remanded in March 2020 in order to obtain new medical opinions from a spine surgeon or similarly qualified practitioner who specializes in orthopedic medicine. The Board directed that the practitioner’s opinions must reflect consideration of the treatment records referenced in the January 2018 Joint Motion, as well as private treatment records dated April 2019 through November 2019 in which the Veteran’s physician expressed his concern that altered biomechanics caused by the Veteran’s knee pain would result in worsening lower back pain. In April 2020, a VA physician specializing in occupational medicine reviewed the evidence of record and opined that it was less likely than not that the Veteran’s current low back disability was caused or aggravated by his service-connected hip or knee disabilities or radiation used to treat his service-connected prostate cancer. In support of this, the physician explained that there is no evidence documenting that the Veteran’s knee or hip disabilities or radiation treatment directly or indirectly caused lumbar degenerative disc disease and sciatic neuritis, and “there is no plausible pathophysiologic mechanism discussed in the medical literature and known medical principles that would explain such a causal relationship between these conditions.” In November 2020, the RO requested an addendum opinion addressing the treatment records noted in the Board’s March 2020 remand directives. Later that month, the physician reviewed the medical records cited in the Board’s remand directives and indicated that those records did not change his prior opinions. Although the Board sincerely regrets the delay, for the reasons set forth below, the Board finds that another remand is required in order to obtain new medical opinions that comply with the terms of the Joint Motions and the Board’s prior remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). First, the record does not show that the physician who provided the April 2020 and November 2020 opinions specializes in orthopedic medicine. Second, the physician’s rationales only discuss causation, not aggravation, and they do not actually address the March 2016 treatment record noting a history of low back pain “aggravated by knee problems” or the 2019 treatment records in which the Veteran’s physician expressed his concern that altered biomechanics caused by the Veteran’s knee pain would result in worsening lower back pain. Finally, some of the physician’s opinions are confusing and somewhat contradictory. The physician indicated that “there is no evidence in the provided medical records documenting that a hip condition or gait disturbance directly or indirectly caused lumbar [degenerative disc disease] and sciatic neuritis;” however, he also opined that “the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness” because “the veteran’s hip complaints seem to be directly related to the left-sided sciatic neuritis which is associated with the lumbar degenerative disc disease and lumbar stenosis documented on recent lumbar MRI scans.” Accordingly, the claim is remanded to obtain new medical opinions in accordance with the terms of the Joint Motions and the Board’s prior remand instructions. The matters are REMANDED for the following action: Provide the claims file to a VA spine surgeon or a similarly qualified practitioner who specializes in orthopedic medicine to obtain an opinion with respect to the Veteran’s claim for service connection for a low back disability. Do not schedule the Veteran for another examination unless it is deemed necessary to respond the questions presented. After a review of the claims file, the practitioner should answer the following: (a.) Is it at least as likely as not (50 percent probability or greater) that a current low back disability was caused by the Veteran’s service-connected hip or knee disabilities, to include any gait disturbance associated with those conditions? Please explain why or why not. (b.) Is it at least as likely as not (50 percent probability or greater) that a current low back disability was aggravated by the Veteran’s service-connected hip or knee disabilities, to include any gait disturbance associated with those conditions? Please explain why or why not. (c.) Is it at least as likely as not (50 percent probability or greater) that a current low back disability was caused by radiation used to treat the Veteran’s service-connected prostate cancer? Please explain why or why not. (d.) Is it at least as likely as not (50 percent probability or greater) that a current low back disability was aggravated by radiation used to treat the Veteran’s service-connected prostate cancer? Please explain why or why not. (e.) If the practitioner finds that the Veteran’s low back disability was aggravated by a service-connected knee or hip disability or prostate cancer radiation treatment, the practitioner should attempt to quantify the degree of worsening beyond the baseline level of low back disability. A complete rationale for all opinions must be provided. The practitioner’s opinion must reflect consideration of the following evidence: i. A September 1978 VA examination report showing complaints of pain and stiffness in lower back and left side and a notation that the Veteran was treated by Dr. Eglin for “back and left leg.” (VBMS – C&P Exam, received 9/29/78). ii. A January 2006 x-ray report showing mild or early degenerative osteoarthritis with small marginal osteophytes. (VBMS – CAPRI, received 2/6/06). iii. A March 2016 VA treatment record noting a past medical history of lower back pain “aggravated by knee problems.” (VBMS – CAPRI, received 6/17/16). iv. Private treatment records dated April 2019 through November 2019 in which the Veteran’s physician expressed his concern that altered biomechanics caused by the Veteran’s knee pain would result in worsening lower back pain. (VBMS – Medical Treatment Record – Non-Government Facility, received 1/7/20). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, 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.