Citation Nr: 21012947 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 09-23 501 DATE: March 8, 2021 REMANDED Entitlement to service connection for a low back disability, to include as secondary to a service-connected right foot disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1980 to September 1991. This case was originally before the Board of Veterans’ Appeals (Board) on appeal from a May 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran first testified at a Travel Board hearing before the undersigned Veterans Law Judge in June 2013. A transcript of the hearing is associated with the Veteran’s electronic claims file. A July 2014 Board decision denied the Veteran’s claim for service connection for a low back disability. A July 2015 order of the United States Court of Appeals for Veterans Claims (Court) implemented a Joint Motion for Remand (JMR), vacating and remanding the Board denial. Thereafter, the Board remanded the claim for development pursuant to the JMR in January 2016. After the development was completed, the Board once again denied the Veteran’s claim in June 2017. Once again, the Veteran appealed the claim to the Court. In January 2019 memorandum decision, the Court set aside the June 2017 decision and remanded the claim for further proceedings. Thereafter, the Veteran requested a second hearing, as was his right. See Quinn v. Wilkie, 17-4555 (Vet. App. 2019). A second hearing before the undersigned VLJ was held in February 2021. A transcript of the hearing is associated with the Veteran’s electronic claims file. The Board notes that a February 2019 rating decision denied the Veteran’s claim for service connection for a low back disability. However, the claim was already on appeal and is addressed herein. Entitlement to service connection for a low back disability, to include as secondary to service-connected right foot disability is remanded. The Veteran asserts that he injured his low back during service and that injury has continued to the present. In the alternative, he asserts that his right foot injury caused or aggravated his current back condition. Finally, the Veteran asserts that his back was predisposed to develop later injuries due to his complaints of back pain during service and/or weakening of his back from his right foot. Thus, his current back problems are a result of that predisposition. The Veteran does not dispute that he had work accidents after service that resulted in severe damage to his back. Because of the severity of the back injury of the first accident, the Veteran was still healing from that injury at the time of the second accident. Therefore, the Board declines to remand for “interval” opinions to address the relative functioning in between accidents. However, the Veteran asserts that he had a back injury prior to the first accident based on an April 2004 opinion by Dr. C.E.: “[the Veteran] does have evidence of disc herniation, as well as disc degeneration. This was aggravated by his injury on-the-job [in October 2003].” An examination report dated February 2004 stated his back pain started approximately one to two months prior and assessed a diagnosis of right herniated nucleus pulposus. See Medical Treatment Records - Furnished by SSA, received March 23, 2016, pages 62 and 71-73 of 86. Later in November 2004, imaging revealed mild diffuse degenerative spondylosis of the lumbar spine. See Medical Treatment Records - Furnished by SSA, received March 23, 2016, page 12 of 129. Given this evidence, there is a question of whether the Veteran had a back injury which preexisted the first, October 2003 accident. Related to the preexistence of a back condition prior to the October 2003 accident, the Veteran reported that he experienced pain from service onward, in part, due to his right foot and related gait disturbances. However, the Veteran did not seek treatment for his back pain because he was already being treated with pain medicine for his right foot. The medical evidence does not reference back pain prior to the October 2003 accident, but the Veteran is competent to report that he experienced pain prior to this point. Further, the Veteran was service-connected for his right foot and had multiple procedures related to his foot prior to the October 2003 accident. Thus, there is a question of whether the back condition prior to the accident was caused or aggravated by the Veteran’s right foot. Finally, even if the Veteran’s back (related or not to the Veteran’s service-connected right foot condition) did not preexist the October 2003 accident, there remains a question of whether the Veteran’s current back condition has been aggravated by the right foot condition. The Veteran submitted a statement from Dr. A.H. who stated: “[his foot …] may exacerbate pain from his lumbar spine condition.” See document titled Third Party Correspondence, received October 7, 2019. This opinion is speculative because the doctor notes it only "may" exacerbate pain. See Obert v. Brown, 5 Vet. App. 30, 33 (1995); Tirpak v. Derwinski, 2 Vet. App. 509, 611 (1992). Speculative opinions are ordinarily entitled to little probative weight. Further, even if the statement were not speculative, it does not adequately address the baseline level of severity of the Veteran’s back (after the second accident), whether the condition actually worsened, and whether there was discernable difference in the level of severity that in turn must be compared using the rating schedule. The matters are REMANDED for the following action: 1. Allow the Veteran and his representative an opportunity to identify or submit evidence related to the Veteran’s back prior to the October 2003 accident. Ask the Veteran to complete a VA Form 21-4142 for such providers. If submitted, make two requests for the authorized records from the identified providers, unless it is clear after the first request that a second request would be futile. 2. Thereafter, obtain a VA examination from a medical professional with knowledge of orthopedic disabilities. The examiner should review the medical record, to include the cited references below, as well as a copy of this remand, in rendering the opinions requested. After an in-person examination, the clinician should answer the following questions: A. What, if any, back condition did the Veteran suffer from between separation from service in September 1991 and October 2003, the date of the first car accident? B. If such a diagnosis existed, is it at least as likely as not (a 50 percent or greater probability) that it: (i) had an onset in service; (ii) is otherwise related to an in-service injury, event, or disease; or (ii) is aggravated by the Veteran’s service-connected right foot disability? Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition. In answering questions A and B, the examiner is advised of the following medical evidence: See document titled Medical Treatment Record - Government Facility, received July 1, 2004; two documents titled Medical Treatment Record - Non-Government Facility, received July 12, 2004; document titled Medical Treatment Record – Non-Government Facility, received September 19, 2005; document titled Medical Treatment Records - Furnished by SSA, received March 23, 2016, pages 62 and 71-73 of 86; document titled Medical Treatment Records - Furnished by SSA, received March 23, 2016, page 12 of 129; and document titled STR-Medical, received April 8, 2015, pages 3, 41, 61, 63, and 66 of 131. C. Considering the Veteran’s back condition since November 2004, the date of the second MVA, is the Veteran’s back condition aggravated by his service-connected right foot disability? Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition. The examiner should address the statement from Dr. A.H. See document titled Third Party Correspondence, received October 7, 2019. (CONTINUED ON NEXT PAGE) In answering question C, the examiner should consider the Veteran’s treatment records since November 2004 and determine (i) the baseline level of severity of the Veteran’s back (after the second accident), (ii) whether the condition actually worsened, and (iii) whether there was discernable difference in the level of severity (that in turn must be compared using the rating schedule). Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.