Citation Nr: 21014880 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-08 270 DATE: March 16, 2021 REMANDED Entitlement to service connection for a back disability, to include cervical disc disease/herniation and lumbar stenosis, claimed as secondary to service-connected residuals of frostbite of the bilateral feet, is remanded. Entitlement to service connection for headaches, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from July 1983 to December 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, December 2018, and October 2020, the Board remanded these issues for additional development. Unfortunately, another remand is necessary prior to consideration of these claims on the merits. 1. Entitlement to service connection for a back disability, to include cervical disc disease/herniation and lumbar stenosis, claimed as secondary to service-connected residuals of frostbite of the bilateral feet, is remanded. In November 2020, the Veteran was afforded a VA examination. The examiner noted diagnoses of lumbar facet hypertrophy, mild levoscoliosis, and degenerative disc disease of the cervical spine. The examiner opined that the Veteran’s back disabilities were not related to her service-connected residuals of frostbite of the feet because the Veteran’s gait was normal upon examination and back disabilities are separate entities from foot disabilities. The examiner further noted that there was no causal relationship between the back and foot disabilities, and that there was no aggravation because the diagnosed back disabilities are conditions that worsen with age. While the examiner stated that the Veteran’s gait was normal on exanimation, it is not clear whether the examiner is indicating that the Veteran has not had an abnormal gait at any point during the period on appeal, which extends back to 2008. The Board notes that a June 2009 VA psychology consultation note indicated that the pain and loss of sensation in the Veteran’s feet created problems with her gait and balance, such that she stood and walked with her weight on her left leg and foot, and a February 2008 VA neurology note indicated that while the Veteran’s gait was intact, she walked with a limp and favored her left side. Furthermore, while the examiner noted that the Veteran’s back disabilities are the type to worsen with age, this does not necessarily preclude a finding that such back disabilities may be aggravated by her service-connected disabilities. The Board’s October 2020 remand directives specifically instructed the VA examiner to opine whether “any diagnosed back disability is proximately due to or chronically aggravated (worsened beyond the natural progress) by the Veteran’s service-connected bilateral foot disability, to include any resulting abnormal gait.” Age-related worsening would be contemplated by the “natural progress” of the condition; thus, the examiner was asked whether there was any worsening beyond that which could be explained by the natural aging process. For these reasons, the Board finds that the November 2020 VA examiner’s opinions are inadequate and remand is necessary to obtain adequate medical opinions regarding the etiology of the Veteran’s back disabilities. 2. Entitlement to service connection for headaches, to include as secondary to service-connected disability, is remanded. In October 2020, the Board remanded this issue and directed the RO to obtain an opinion as to whether the Veteran’s headaches are caused or aggravated by her service-connected disabilities, to include a bilateral foot disability and major depressive disorder. The examiner was also instructed to provide an opinion as to whether the Veteran’s back or neck disabilities have caused or aggravated the Veteran’s headaches. In November 2020, the Veteran was afforded a VA headaches examination. The VA examiner opined that the Veteran’s headaches are less likely than not proximately due to the Veteran’s service connected disabilities. The VA examiner explained that the conditions of headache disorder and bilateral foot disability and/or major depressive order are not medically related. The headache disorder is a separate entity entirely from the service-connected bilateral foot disability and major depressive order. Furthermore, the VA examiner noted that the Veteran’s claimed headache condition was noted on her enlistment examination in March 1084. Finally, the VA examiner noted that a June 2007 brain MRI report showed a Chiari 1 malformation, which current literature shows as a cause of migraines. The VA examiner further opined that the Veteran’s headache condition is not at least as likely as not aggravated beyond its natural progression by her service-connected disabilities. The VA examiner explained that the Veteran’s reports of headaches have not been consistent and continuous, as evidence by the gap in medical documentation to suggest aggravation beyond the natural progression of the headache disorder. The Board finds both of these opinions to be inadequate. As to the secondary service connection opinion, the VA examiner improperly implies that the Veteran’s headache condition existed prior to service. As explained by the Board in its December 2018 remand, the Veteran is presumed to have been in sound condition upon entry into service as to her headache condition, and this presumption can only be rebutted by clear and unmistakable evidence that the Veteran’s disability was both pre-existing and not aggravated by service. The examiner also stated that the diagnosed Chiari malformation may cause headaches, but did not provide further explanation as to why such malformation is more likely than the Veteran’s service-connected disabilities to have caused her headaches. For these reasons, the secondary service connection opinion is inadequate. As to the opinion on aggravation, the VA examiner impermissibly relied solely on the absence of evidence of medical treatment to find that there was no aggravation of the Veteran’s headache condition by her service-connected; therefore, the opinion is inadequate. Furthermore, the VA examiner did not provide an opinion as to whether the headaches are aggravated by the Veteran’s back or neck disabilities, as directed by the Board’s October 2020 remand directives. For these reasons, remand is warranted to obtain adequate medical opinions. See Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). Finally, the record reflects that the Veteran’s headaches may, at least in part, be caused or aggravated by her claimed cervical-spine disability. Thus, the two claims are inextricably intertwined and remand of the issue of entitlement to service connection for headaches is warranted. The matters are REMANDED for the following actions: 1. Obtain an opinion from a new VA examiner as to the nature and etiology of the Veteran’s diagnosed back disabilities. A new examination is only required if deemed necessary by the examiner. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner should provide the following opinions: a. For EACH diagnosed back disability, to include lumbar facet hypertrophy, mild levoscoliosis, and degenerative disc disease of the cervical spine, whether it is at least as not (i.e., 50 percent or greater probability) that the currently diagnosed condition is related to or caused by service. b. For EACH diagnosed back disability, to include lumbar facet hypertrophy, mild levoscoliosis, and degenerative disc disease of the cervical spine, whether it is at least as not (i.e., 50 percent or greater probability) that the currently diagnosed condition is caused or aggravated by the Veteran’s service-connected residuals of frostbite of the bilateral feet and peripheral neuropathy of the lower extremities, to include as a result of an altered gait. **The examiner should note the June 2009 VA psychology consultation note indicate that the pain and loss of sensation in the Veteran’s feet create problems with her gait and balance, such that she stands and walks with her weight on her left leg and foot, and the February 2008 VA neurology note indicating that while the Veteran’s gait was intact, she walked with a limp and favored her left side. A detailed rationale should be provided for the opinions rendered. 3. Obtain an opinion from a new VA examiner as to the nature and etiology of the Veteran’s headaches. A new examination is only required if deemed necessary by the examiner. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner should provide the following opinions: a. Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s headache condition is proximately due to or caused by the Veteran’s service-connected disabilities, to include her bilateral foot disability and/or major depressive disorder. b. Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s headache condition is aggravated (worsened beyond the natural progression) by the Veteran’s service-connected disabilities, to include her bilateral foot disability and/or major depressive disorder. c. Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s headache condition is caused or aggravated by her diagnosed back or neck disabilities. **The examiner is reminded that the Board previously found that the Veteran is presumed to have been in sound condition (i.e., without a headache condition) upon entrance to service. A detailed rationale should be provided for the opinions rendered. Megan R. Thomas Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. D. Bruce, 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.