Citation Nr: 21024554 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 19-15 975 DATE: April 23, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left leg disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1961 to March 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran’s claims of entitlement to service connection for disabilities of the low back and left leg. He filed a notice of disagreement (NOD) in November 2016 and a statement of the case (SOC) was issued in April 2019. He perfected a timely appeal in May 2019. In March 2021, the Veteran presented sworn testimony during a virtual hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s VA claims file. 1. Entitlement to service connection for a low back disability is remanded. 2. Entitlement to service connection for a left leg disability is remanded. The Veteran asserts entitlement to service connection for disabilities of the low back and left leg. Specifically, he contends he had disabilities of the low back and left leg, which pre-existed service and were aggravated thereby. See, e.g., the Board hearing transcript dated March 2021. The Veteran’s February 1961 enlistment examination documented a 1 inch shortening of the left leg as a result of an old fracture of the femur. The enlistment examiner noted, “[t]here is [slight] pelvic tilt and compensatory scoliosis. No limp. Has not interfered with active vocation in civil[ian] life.” The Veteran’s February 1961 Report of Medical History noted that he broke his left leg (thigh bone) at the age of 14 in a motorcycle accident. The Veteran also reported injuries to both knees and ankles at that time, and had six teeth knocked out in the accident. See the Report of Medical History dated February 1961. Another February 1961 Report of Medical History noted, “[f]ractured femur [existed prior to service] with weak knee as a residual.” Service treatment records (STRs) show that the Veteran complained of left knee pain in October 1961. He reported pain in the left leg in May 1962, July 1962, and December 1962. The May 1962 STR noted that the Veteran’s left leg was shorter than his right. X-rays of the left knee were performed in May 1962, which revealed a normal knee. X-rays of the left thigh dated in May 1962 showed “solidly healed fracture deformity involving the mid shaft. No evidence of complication; foreign body or other abnormality seen.” A May 1962 STR noted that the Veteran had an old fracture of the left femur with some residual atrophy. The December 1962 STR noted that the Veteran had an L3 profile due to his left leg symptoms. An April 1963 physical profile indicated that the Veteran had a painful left leg due to an old fracture and shortening of the bone. The January 1964 separation examination indicated that the Veteran had previously broken his thigh bone in his left leg. In the January 1964 Report of Medical History at separation, the Veteran endorsed swollen/painful joints. VA and private treatment records document diagnoses of degenerative disc disease (DDD) of the lumbar spine, as well as degenerative changes of the left knee and left hip. See the VA treatment records dated November 2015; private treatment records dated August 2009 and December 2015. In an October 2015 letter, Dr. B.O. reported that the Veteran is his patient. He reported that, after reviewing the Veteran’s “medical problems which [are] reported to have started after an accident at age 13, it is my belief that his medical issues were aggravated by his working including his time in the military.” The Veteran was afforded a VA medical opinion in May 2016 at which time the examiner concluded that the condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. The examiner explained, “[t]he patient's foreshortening of the left leg was recognized on his entrance exam. When he began having left leg pain doing PT, he was immediately placed on profile and given the appropriate lift to his shoe to correct the discrepancy in leg length. He worked as a mechanic, and in supply and was not required to do any more running, jumping or climbing.” The examiner continued, “[f]ollowing his discharge from service he worked as a trucker and says that he and his son enjoyed climbing the hills west of Little Rock hunting together. It is my opinion, that this man's time in service, as likely as not, did not aggravate his condition above or beyond what would be expected to be the normal progression of his condition.” In support of his claim, the Veteran submitted a July 2019 statement from Dr. H.S. who reported that the Veteran “has chronic medical problems that include chronic back pain and left leg shortening.” Dr. H.S. did not offer an opinion on the etiology of the Veteran’s disabilities. At the March 2021 Board hearing, the Veteran detailed his injuries to his left leg and back, which were incurred in a motorcycle accident when he was 13 years-old. He reported that his recovery from the accident took approximately two years, but he did not experience any residual disabilities of the left leg and back in the years leading up to his March 1961 enlistment. See the March 2021 Board hearing transcript, pg. 5. The Veteran explained that his left leg and back did not bother him during basic training. However, in the months and years that followed, he experienced residual symptomatology as a result of heavy lifting required in his military occupational specialty (MOS). Id.at pgs. 8, 16-17. As described above, the Veteran was afforded a May 2016 VA medical opinion as to the etiology of his left leg and back disabilities. However, the examiner did not address the etiology of the pre-existing back disability (pelvic tilt with scoliosis) noted in the February 1961 entrance examination. The examiner also failed to consider the Veteran’s contentions that his pre-existing left leg and back disabilities were not symptomatic prior to his active duty enlistment and were aggravated by the repetitive heavy lifting required in his MOS. The Board therefore finds that the evidence currently of record is inadequate to resolve the claims of service connection for disabilities of the low back and left leg. Therefore, remand of these matters for an additional VA medical opinion is warranted to address outstanding questions of aggravation. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made). The matters are REMANDED for the following action: Refer the VA claims file to a medical professional with appropriate expertise to provide an opinion as to the claimed disabilities of the low back and left leg. The examiner is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. The examiner should then provide an opinion as to whether there is clear and unmistakable (obvious, manifest, and undebatable) evidence that the pre-existing left leg and low back disabilities WERE NOT aggravated (i.e., permanently worsened) during service, or whether it is clear and unmistakable that any increase was due to the natural progress of the disabilities. In answering this question, the examiner should address the Veteran’s lay assertions that his left leg and back disabilities were asymptomatic prior to his enlistment in active duty and that he experienced subsequent onset and worsening of left leg and low back symptomatology dating from his military service. The medical reasons for accepting or rejecting the Veteran’s statements should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Should the examiner decide that an examination of the Veteran is required to address these questions, one should be scheduled. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.