Citation Nr: 21021342 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 14-30 816 DATE: April 12, 2021 REMANDED 1. Entitlement to service connection for a back disability is remanded. 2. Entitlement to service connection for right leg disability, to include as secondary to service-connected pes planus, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from August 1978 to August 1981. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision which, inter alia, denied service connection for low back and right leg disabilities. In September 2015, a videoconference hearing was held before the undersigned; a transcript is in the Veteran’s record. In February 2018, the case was remanded for additional development. A February 2020 Board decision denied service connection for a back disability and remanded the matter of service connection for a right leg disability for additional development. The Veteran appealed the portion of that decision which denied service connection for a back disability to the U.S. Court of Appeals for Veterans Claims (CAVC) resulting in a September 2020 Joint Motion for Partial Remand (JMPR) by the parties. A September 2020 CAVC Order remanded the matter for action consistent with the terms of the JMPR. 1. Entitlement to service connection for a back disability In the September 2020 JMPR, the parties agreed that vacatur and remand are warranted because the Board erred when it failed to provide an adequate statement of reasons or bases properly addressing the Veteran’s statement of continuity of symptomatology under 38 C.F.R. § 3.303(b). Notably, the parties agreed that the Board found that private treatment records did not show any treatment for back complaints prior to 2008, but that records dated in 2008 note complaints of back pain which began approximately 10 years prior (so approximately in 1998, about 17 years after service). The parties agreed that remand was warranted to properly weigh the lay statements and whether such statements reflect continuity of back symptomatology. The Board’s February 2020 denial was based in large part on a September 2019 VA back examination report when the examiner wrote, “No medical records were found describing evaluation or treatment from August 1981 through 2007.” Although the examiner subsequently acknowledged a June 2008 treatment record which noted complaints of chronic low back pain “for the previous past few years,” he did not acknowledge the Veteran’s other similar, albeit somewhat inconsistent, report of symptom onset 10 years prior. Accordingly, an addendum advisory medical opinion based on a fully accurate factual premise (particularly in light of the JMPR’s focus on the 2008 treatment records which report symptom onset approximate 10 years prior) is necessary. 2. Entitlement to service connection for a right leg disability, to include as secondary to service-connected pes planus The Board remanded this matter in February 2020 for a fully adequate, advisory medical opinion to ascertain the nature and likely etiology of the Veteran’s claimed right leg disability. The Board explained that a June 2014 VA medical opinion (that the Veteran’s right knee condition is not secondary to his pes planus, and that his right thigh symptoms are at least as likely as not due to lumbar radiculopathy) was cursory and inadequate for rating purposes. The Board also explained that a September 2019 VA medical opinion failed to address whether the reported right thigh numbness is a separate disability entity from the right knee arthritis, and whether such is secondary to pes planus. In April 2020, another VA (fee basis) examiner examined the Veteran, reviewed the record, and diagnosed right knee degenerative arthritis and right leg strain. [She explained that the right knee arthritis is separate from, and unrelated to, the right leg strain.] She provided a negative direct nexus (to service) opinion for the diagnoses of right knee arthritis and right leg pain. She also provided negative secondary and aggravation opinions for the diagnosis of right leg strain. However, she did not provide a secondary/aggravation opinion regarding the right knee arthritis and ultimately conflated the disabilities by writing, “There is no evidence of complications or diagnosis and treatment of any disability secondary to a right leg strain” (rather than bilateral pes planus, for which service connection was established). A remand for an adequate advisory medical opinion is necessary. Finally, upon further review of the record, the Board notes that a September 30, 2008 private treatment record notes an impression of right-sided iliotibial band syndrome (regarding the Veteran’s complaints of pain in the lateral aspect of his right thigh). It is not clear whether that condition (noted two years prior to the instant claim) resolved or remains but was not addressed/found on April 2020 examination. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). On remand, the examiner should clarify/reconcile the notation of such condition. The matters are REMANDED for the following: 1. Secure for the record updated (to the present, those not already associated with the record) complete clinical records of all VA evaluations and treatment the Veteran has received for his back and right leg disabilities. 2. After the development requested above is completed, arrange for the Veteran’s record to be returned to the September 2019 VA back conditions examiner for review and an addendum opinion regarding the likely etiology of the Veteran’s back disability. [If that provider is unavailable or unable to provide the addendum opinion sought, arrange for the record to be forwarded to another appropriate clinician for review and the opinions sought. If that occurs, and further orthopedic examination of the Veteran is deemed necessary, such should be arranged.] The Veteran’s entire record (to include this remand, the September 2019 VA back examination report, and any records received pursuant to the request above) must be reviewed by the examiner. Noting the “deficiencies” identified by the parties to the JMPR, the examiner should provide opinions that respond to the following: (a) Identify (by diagnosis) each back disability shown/found during the appeal period. If lumbar strain, bulging disc L4-L5, lumbar spine degenerative disc disease, or lumbar spine degenerative arthritis is not diagnosed, reconcile such with the diagnoses noted in the September 2019 VA back examination report. (b) Identify the likely etiology for each back disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that the disabilities are etiologically related to the Veteran’s service/events therein? The rationale for the opinion provided must address/discuss the following: (i) The April 1982 (8 months after separation from service) quadrennial examination report which notes the Veteran’s spine was clinically normal and his denials of recurrent back pain and arthritis; (ii) The June 23, 2008 treatment record which notes the Veteran’s report of low back pain “for few yrs”; and, (iii) The September 9, 2008 treatment record which notes the Veteran’s report of low back pain which “started when he was working ten years ago suddenly.” (c) If the answer to (b) is No, identify the etiology considered more likely and explain why that is so. The examiner should include rationale with all opinions, citing to supporting factual data and medical literature/treatise as deemed appropriate. 3. Arrange for the Veteran’s record to be returned to the April 2020 VA (fee basis) knee and lower leg conditions examiner for review and an addendum opinion regarding the nature and likely etiology of the Veteran’s right leg disability. [If that provider is unavailable or unable to provide the addendum opinion sought, arrange for the record to be forwarded to another appropriate clinician for review and the opinions sought. If that occurs, and further orthopedic examination of the Veteran is deemed necessary, such should be arranged.] The Veteran’s entire record (to include this remand, the April 2020 leg conditions examination report, and any records received pursuant to the request above) must be reviewed by the examiner. The examiner should provide opinions that respond to the following: (a) Identify (by diagnosis) each right leg disability shown/found during the appeal period. If right knee arthritis, right leg strain, or right-sided iliotibial band syndrome is not diagnosed, reconcile such with the diagnoses noted in the April 2020 examination report and September 30, 2008 treatment record. (b) Identify the likely etiology for each right leg disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that the disabilities are etiologically related to the Veteran’s service/events therein? (c) If the response to (b) is No, is it at least as likely as not (a 50% or greater probability) that the disabilities were caused or aggravated by the Veteran’s service-connected bilateral pes planus? The opinion must address aggravation for each diagnosed right leg disability entity. (d) If a right leg disability diagnosed is found to not be related to service or to have been caused or aggravated by the service-connected pes planus, identify the etiology for the right leg disability that is considered to be more likely (and explain why that is so). All opinions must include rationale that cites to supporting factual data and medical principles. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, 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.