Citation Nr: 21015724 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 09-42 227 DATE: March 18, 2021 REMANDED Entitlement to service connection for a low back disability, to include as secondary to service-connected left lower extremity shell fragment wound (SFW) residuals, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from October 1967 to October 1969. This matter is before the Board of Veterans’ Appeals (Board) on remand from the U.S. Court of Appeals for Veterans Claims (CAVC). The matter was initially before the Board on appeal of a June 2007 rating decision. In September 2012, a Travel Board hearing was held before the undersigned. A transcript of the hearing is in the record. In February 2013, May 2015, April 2017, and December 2017, the matter was remanded for additional development. A December 2019 Board decision denied service connection for a low back disability and left hip disability. The Veteran appealed that decision to the CAVC. A September 2020 CAVC Order vacated the portion of the Board’s December 2019 decision that denied service connection for a low back disability, and remanded it to the Board for further development and re-adjudication consistent with terms of an August 2020 Joint Motion for Partial Remand (JMPR). [The CAVC left undisturbed the part of the Board decision that denied service connection for a left hip disability, noting that the Veteran did not pursue that part of the Board’s decision denying service connection for such disability.] The Veteran served in combat, and was awarded a Combat Infantryman Badge and a Purple Heart Medal; he is entitled to consideration of his claims under the relaxed evidentiary standards afforded under 38 U.S.C.§ 1154(b). In the August 2020 JMPR, the parties agreed that vacatur and remand was required because the Board erred when it assessed an April 2007 private opinion and found it to be inadequate “because it lacks adequate rationale and does not reflect familiarity with the Veteran’s complete record,” and it was noted that a lack of familiarity with a claimant’s complete record does not automatically render the medical opinion inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Additionally, the JMPR notes that the April 2007 opinion did provide a rationale as to aggravation; stating that numbness in Veteran’s left leg throws off his balance and posture, which aggravates his spine. Therefore, remand was warranted for the Board to provide an adequate statement of reasons or bases for its determination. On close review of the record, the Board continues to find that the April 2007 private opinion is inadequate. Although the provider had some familiarity with the Veteran’s postservice treatment by having provided chiropractic care monthly for multiple years, there is no indication as to what, if any, other postservice or service treatment records were reviewed by the provider. Regarding aggravation, the provider simply states that numbness in the Veteran’s left leg throws off his balance and posture, which aggravates his spine. There is no further discussion of the possible level of aggravation (no matter how small), and the opinion does not point to any evidence of aggravation (such as notations of evidence of such in available treatment records). The Veteran was provided an opportunity to submit additional records from this provider, and although partial treatment records were received in October 2012 (which did not provide any additional support for the April 2007 opinion), he reported in August 2015 that the provider had retired and that he had no contact information for the provider. Regarding the Veteran’s theory of secondary causation, the Board relied on a January 2018 VA opinion which stated that “[t]here is simply a lack of documentation to support the existence of [a significantly altered]gait in the available records,” and “as there is no documentation of a significant limp, there is no mechanism by which residuals from the soft tissue injury to the lower left leg could aggravate back or hip conditions,” and a June 2019 opinion which confirmed that analysis. However, the parties to the JMPR agreed that multiple treatment records (April 1994-February 1995 private treatment records, a September 23, 2009, VA examination, a May 15, 2014 VA treatment record, and a July 17, 2015 VA treatment record) note the Veteran having a limp or altered gait. Therefore, remand for an adequate medical advisory opinion (that addresses the cited evidence of limp or altered gait) and to clarify why such limp or altered gait is, or not, considered significant. The matter is REMANDED for the following: 1. Secure for the record any outstanding (updated to the present) records of VA evaluations or treatment the Veteran received for his low back. 2. Thereafter, arrange for the record to be forwarded to an appropriate physician (in orthopedics, if possible) for review and an addendum opinion regarding whether it is at least as likely as not (a 50% or greater probability) that the Veteran’s diagnosed degenerative joint disease (DJD) of the lumbosacral spine was caused or aggravated (the opinion must address aggravation) by his service-connected left lower extremity shell fragment wound residuals. The Veteran’s record (to specifically include the January 2018 and June 2019 opinions, April 1994-February 1995 private treatment records, a September 23, 2009, VA examination, a May 15, 2014 VA treatment record, a July 17, 2015 VA treatment record and any records obtained due to the above development which note that the Veteran has a limp or altered gait) must be reviewed by the provider in conjunction with this opinion. (a) If the opinion is that a low back disability was not caused or aggravated by service-connected left lower extremity shell fragment wound residuals, explain why a limp or altered gait (noted in the above-cited treatment records) was not significant enough to have aggravated a low back disability. (b) If the opinion is that service-connected left lower extremity shell fragment wound residuals did not cause, but aggravated, a low back disability, specify, to the extent possible, the degree of disability (symptoms and/or impairment) that resulted from such aggravation. (c) If a low back disability was not caused or aggravated by service-connected left lower extremity shell fragment wound residuals, identify etiology for the low back disability that is considered to be more likely, and explain why that is so. The opinion must include complete rationale that cites to factual data and medical principles/medical literature, as deemed appropriate). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.