Citation Nr: 21023893 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-30 790 DATE: April 21, 2021 REMANDED Entitlement to service connection for a lower back disorder, to include as secondary to service-connected left big toe fracture residuals, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1974 to February 1976. This matter comes before the Board of Veterans’ Appeals (“Board”) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (“VA”) Regional Office (“RO”). In January 2017, the Veteran testified at a Board’s hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In July 2018, the Board remanded this matter for additional development. Thereafter, in a July 2019 decision, the Board denied service connection for a back disorder, to include as secondary to service-connected left big toe fracture residuals. The Veteran appealed the July 2019 Board’s decision to the United States Court of Appeals for Veterans Claims (“CAVC”). In an April 2020 Order, CAVC granted a Joint Motion for Remand (“JMR”) by the parties (the Veteran and the Secretary of VA), vacating the Board’s July 2019 decision and remanding the matter back to the Board for further adjudication. Consequently, the Board remanded the matter again in September 2020 for associating the outstanding medical records, including the relevant records from the Social Security Administration (“SSA”), and obtaining a new VA medical opinion with an adequate rationale as to whether the Veteran’s service-connected left big toe fracture residuals caused or aggravated his claimed lower back disorder. Pursuant to the Board’s September 2020 remand, the RO associated the outstanding medical treatment records with the claims file, afforded the Veteran a medical examination, and obtained a medical opinion in January 2021. However, the Board finds the January 2021 opinion inadequate for deciding the issue on appeal. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Regrettably, the Board finds that further remand is necessary in this matter. Entitlement to service connection for a lower back disorder, to include as secondary to service-connected left big toe fracture residuals, is remanded. The Veteran contends that his altered gait after an in-service left big toe fracture caused or aggravated his lower back condition. In an April 2015 notice of disagreement, the Veteran stated that the problems with his big toe caused him to adjust his body, resulting in back pain. At the January 2017 Board’s hearing and during March 2019 VA examination, the Veteran stated that the increased pain in his toe caused him to alter his gait, and he started having back pain within a few months of his toe injury. In an October 2015 private treatment record, the physician noted that the Veteran had been favoring one side due to pain in his left great toe, which caused an alteration of gait and certainly could be affecting his lower back. The physician further stated that there was an obvious alteration to the Veteran’s gait secondary to his old fracture of the left great toe, which was altering the mechanics of the kinetic chain and affecting his current lower back symptoms in a negative manner. In a November 2015 private treatment record, the physician opined that the Veteran’s altered gait was reflected superiorly up the kinetic chain and was at least as likely as not, directly related to and significantly contributing to his current mechanical lower back pain. Pursuant to the September 2020 Board’s remand, the Veteran was afforded an in-person VA examination in January 2021, in which the Veteran was diagnosed with degenerative arthritis of the spine, spinal stenosis, vertebral fracture, and bilateral lower extremity radiculopathy. The VA examiner noted the onset of back pain in 1980’s and opined that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected condition, including left great toe fracture. As a supporting rationale, the examiner stated that the conditions of lower back disorder and status post (s/p) acute nondisplaced left great toe fracture are not medically related. The lower back disorder is a separate entity entirely from the s/p nondisplaced left great toe fracture, and a thorough review of medical literature failed to demonstrate a causal relationship. Furthermore, the examiner noted the in-service toe fracture, complaints of altered gait, current medical conditions, including back pain, knee pain, alcohol abuse, and tobacco disorder; and stated that when analyzing this information, as with research, there are confounding variables (CV), independent variables (IV), and dependent variables (DV). In this case it is being asserted that the left great toe fracture in 1975 caused the Veteran’s current back condition(s) first objectively diagnosed in 2015. The confounding variable is the Veteran’s contention of chronic altered gait. If one were to be asked if an altered gait can put stresses on other parts of the musculoskeletal system over time without considering any other variables, then yes. There is research that can link the two, but this Veteran’s reported Disability Benefit Questionnaire (DBQ) noted the left great toe pain began “a few years ago” approximately 2010. Therefore, if there were an altered gait chronically it would have started in 2010 if it were caused solely from toe fracture in 1975 (not from any other cause). This is 35 years after acute injury. There is simply insufficient medical evidence to support chronic altered gait. Therefore, an altered gait solely related to service-connected left toe fracture is not the most likely variable lending themselves to or causing the Veteran’s current back condition(s). It is important to look at the whole clinical picture. There is objective medical evidence of other confounding variables in this Veteran’s overall health picture that impact the axial spine, which include 60 pack year history of smoking with osteopenia and compression fractures noted in 2016; and an occupational history beginning after service for iron working, welding, and truck driving. All of these positions are physically demanding positions causing wear and tear on the musculoskeletal system to include the spine which, over time, will increase degeneration. In this particular case, even if there was sufficient medical evidence to support an altered gait solely from service-connected nondisplaced left great toe fracture, it is simply not true for this Veteran. Consequently, the examiner stated that this Veteran’s back conditions, to include lumbar spondylosis and stenosis, degenerative arthritis, and degenerative intervertebral disc disease, compression fractures, and bilateral lower extremity radiculopathy are in no way secondary to service-connected s/p nondisplaced left great toe fracture or subjectively reported altered gait from it. Regarding aggravation, the examiner opined that the Veteran’s lower back condition was not aggravated beyond its natural progression by the service-connected left great toe disability. As a supporting rationale, the examiner stated that the only way this Veteran’s back condition(s) could be aggravated by service-connected left great toe fracture would be related to a chronically altered gait solely caused by service-connected left great toe fracture. In this particular case, even if there was sufficient medical evidence to support an altered gait solely from service-connected nondisplaced left great toe fracture, it is simply not true for this Veteran. The examiner concluded that the Veteran’s back condition(s) to include lumbar spondylosis and stenosis, degenerative arthritis, and degenerative intervertebral disc disease, compression fractures, and bilateral lower extremity radiculopathy are in no way aggravated by service-connected s/p nondisplaced left great toe fracture or subjectively reported altered gait from it. The Board finds the above January 2021 opinion on causation of the Veteran’s lower back condition as secondary to service-connected left great toe fracture residuals is adequate. However, the opinion on aggravation of the Veteran’s lower back condition as secondary to left great toe fracture is not adequate because the examiner did not address the Veteran’s lay statements, including January 2017 testimony at the Board’s hearing, regarding his altered gait after the in-service fracture, as specifically directed in the Board’s September 2020 remand. Furthermore, the examiner did not discuss the October and November 2015 private medical opinions, which noted that the Veteran’s gait secondary to his old fracture of the left great toe was altering the mechanics of the kinetic chain and affecting his current lower back symptoms in a negative manner. Lastly, the examiner did not discuss the August 2015 VA chiropractic notation of chronic complaints of altered gait due to left big toe problems, and objective findings of altered posture indicated by right low hip and left low shoulder. Consequently, the Board finds that a remand is warranted to obtain an addendum medical opinion specifically regarding the claimed aggravation of the Veteran’s lower back disorder by his service-connected left toe disability. The matter is REMANDED for the following action: 1. Forward the claims file and a copy of this remand to the examiner who rendered the January 2021 opinion, or to an appropriate clinician if the January 2021 examiner is unavailable, to obtain an addendum opinion on the nature and etiology of the Veteran’s lower back disorder. In-person examination of the Veteran is left to the discretion of the clinician providing the addendum opinion. If the clinician deems such examination is necessary, then an examination should be scheduled. 2. After reviewing the claims file, the examiner should address the following: Provide an opinion as to whether the Veteran’s lower back disorder is at least as likely as not (i) proximately due to or (ii) aggravated beyond its natural progression by his service-connected left big toe fracture residuals. In providing the above opinions, specifically the opinion on aggravation of the lower back disorder, the examiner is advised to discuss the Veteran’s contentions regarding altered gait after in-service left big toe injury. The examiner is also advised to discuss medical evidence in favor of the claim, which are associated with the claims file with entries dated: (i) 02/11/2019, titled “CAPRI,” page number 369, which includes August 2015 VA chiropractic notation of exacerbation of lower back pain due to left big toe problems, and objective findings regarding musculoskeletal system, including leg length discrepancy, right low hip and left low shoulder indicating the altered posture; (ii) 11/05/2015, titled “Medical Treatment Record – Non-Government Facility,” which includes the October 2015 private medical opinion noting an obvious alteration of gait secondary to old fracture of the great left toe, and opining that the Veteran’s altered gait is changing the mechanics up the kinetic chain and affecting his current lower back symptoms in a negative manner; (iii) 12/02/2015, titled “Third Party Correspondence,” which includes the November 2015 private medical opinion, noting that altered gait significantly contributing to the Veteran’s current mechanical lower back pain. A complete rationale for the opinions rendered must be provided. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. (Continued on the next page)   3. Thereafter, if the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tariq, Nadeem, Associate Attorney 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.