Citation Nr: 21021896 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-45 577 DATE: April 14, 2021 REMANDED Entitlement to a disability rating in excess of 40 percent for lumbosacral strain with arthritis is remanded. Entitlement to service connection for a right big toe condition is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1976 until July 1982. In July 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal has been before the Board on two prior occasions. Most recently, in June 2020, the Board remanded the claims for further development. Subsequent to the Board’s June 2020 remand, the agency of original jurisdiction (AOJ) granted service connection for the Veteran’s claimed neck condition. That claim is no longer before the Board. Turning to the remaining issues, the Board finds there has not been substantial compliance with its prior remand directives and another remand is now required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a disability rating in excess of 40 percent for lumbosacral strain with arthritis is remanded. The Veteran asserts that his service-connected condition of lumbosacral strain with arthritis has worsened and that a disability rating in excess of 40 percent is now warranted. The Board claim must be remanded because the November 2020 VA examination is inadequate. The Veteran reported increased pain during flare ups that limits his activities including being unable to perform household duties such as bending to clean up, load the dishwasher, or cut the grass. On examination, the examiner noted that, although the examination did not occur during a flare, pain significantly limits the Veteran’s functional ability during flares. The examiner stated that functional loss experienced during flares could be described in terms of range of motion. However, the examiner then reported ranges of motion identical to the reported initial range of motion measurements. The same was reported for repetitive use over time. Such estimations appear to be incongruent with the Veteran’s report of additional functional loss during flares. The Board, therefore, finds the November 2020 VA examination to be inadequate and nonprobative for rating purposes. On remand, the Veteran should be afforded a new VA examination to determine the current nature and severity of his service-connected lumbosacral strain with arthritis. 2. Entitlement to service connection for a right big toe condition is remanded. The Veteran contends that he has a right big toe condition that is etiologically related to service, to include as secondary to his service-connected conditions. The Veteran has specifically argued that he injured his right toe at the same time he injured his back; service connection is in effect for the back disability. The claim must be remanded for another opinion because the November 2020 examination and December 2020 addendum opinion are inadequate. The November 2020 opinion included a positive nexus opinion but that opinion was based on an injury in 1987; the Veteran left active duty in 1982. The opinion was also inadequate as to secondary service connection because it used an incorrect standard. The December 2020 addendum opinion is also inadequate because it did not clarify the problems in the early opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of all manifestations of his service-connected lumbosacral strain with arthritis. Copies of all pertinent records, including a copy of this remand, should be provided to the examiner. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. If the Veteran reports flare-ups, the examiner should ask the Veteran to describe the factors that precipitate a flare-up and the frequency, duration, and severity of any flare-ups. The examiner should use that information to comment on the functional limitations caused by pain and any other associated symptoms. Such comments should include whether there was additional limitation of motion following repetitive use testing due to pain weakness, fatigability, etc. Any determination concerning this functional loss should be expressed in degrees of additional range of motion loss. A detailed rationale is requested for all opinions provided. 2. Obtain an addendum opinion from an appropriate clinician regarding the likely etiology of any diagnosed right toe disability. Copies of all pertinent records must be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled. Based on a review of the record (and examination, if needed), the examiner should answer the following: (a) Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed right big toe condition was incurred in or is otherwise related to the Veteran’s active service from July 1976 until July 1982? The examiner should specifically consider the Veteran’s argument that he injured his right toe in the same in-service incident where he sustained the now service-connected back disability. (b) Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed right big toe condition is proximately due to (caused by) the Veteran’s service-connected disabilities? (c) Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed right big toe condition is aggravated (defined as any increase in disability) by any of the Veteran’s service-connected disabilities? The examiner is notified that the Veteran is competent to report symptomatology readily apparent to him. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. All provided opinions must be supported by complete rationale. If the examiner determines that a requested opinion cannot be provided without resort to speculation, they must say why. 3. Confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Collins, Associate 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.