Citation Nr: 21027334 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-26 230 DATE: May 5, 2021 REMANDED Entitlement to service connection for a lumbosacral spine disability is remanded. Entitlement to service connection for a bilateral foot disability, to include flat feet (pes planus), is remanded. Entitlement to service connection for a recurrent left shoulder disability is remanded. REASONS FOR REMAND The Veteran had active service from July 1976 to June 1978. 1. Entitlement to service connection for a lumbosacral spine disability is remanded. Service connection may be granted for disability which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service connected disorder has aggravated a nonservice connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection has been established for post-operative left knee internal derangement, left knee instability, and left knee scars. The January 2019 Board of Veterans' Appeals (Board) Remand instructions direct that the Veteran was to be afforded a VA spine examination. The examiner was directed to "indicate whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's back disability is related to his service, to include his July 1977 and January 1978 falls" and "opine as to whether the back disability is either (a) caused or (b) aggravated by service-connected left knee disabilities: left knee internal derangement, and left knee instability associated with left knee internal derangement." The report of a September 2019 spine examination conducted for the Department of Veterans Affairs (VA) and a June 2020 addendum thereto state that the Veteran had lumbosacral strain which had been initially diagnosed in 1977. The examiner commented that: "after careful review and consideration of the available evidence, current examination, reported history and commonly accepted medical concepts and principles, it is this author's opinion that the Veteran's currently diagnosed back condition is not incident to his service to include his falls;" "there is no concept which would support that a non-contiguous joint would cause insult to an unrelated joint, so the knee would not cause the lumbar spine strain;" "any injury to his spine would be a primary injury and would be intrinsic to the spine itself;" "if an unrelated joint to an alternate part of the body were responsible for injury, then he should subsequently have injury to his shoulder, his hands and fingers, and any other remote part of his body which is an absurd notion on the grounds of it causing some sort of gait derangement or stress on other joints;" and "therefore, I find it less likely than not incurred in or proximately due to the service connected condition." The examiner did not address whether the diagnosed lumbosacral strain was aggravated (increased in severity) due to the service connected disabilities. Given the conflicting findings that the diagnosed lumbosacral strain was both diagnosed during active service and "was not incident" to service, the Board is unable to discern whether the examiner determined that the lumbar spine originated during active service. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Agency of Original Jurisdiction's compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Board finds that further VA spine examination is needed. 2. Entitlement to service connection for a bilateral foot disability to include flat foot (pes planus) is remanded. The January 2019 Board Remand instructions direct that the Veteran was to be afforded a VA foot examination. If the flatfoot is an acquired condition, the examiner was directed to "indicate whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's bilateral flat foot is related to his service, to include his July 1977 fall" and "opine as to whether the bilateral flat foot is either (a) caused or (b) aggravated by service-connected left knee disabilities: left knee internal derangement." The report of a September 2019 foot examination conducted for VA and a June 2020 addendum state that the Veteran was diagnosed with "flat foot (pes planus)." The examiner commented that: the diagnosed pes planus was acquired in nature; "on the basis of records reviewed, current examination, commonly accepted medical principles, and remand case, it is this author's opinion that the Veteran's pes planus is unrelated to service as the records clearly reveal he had normal arches during service;" "in regards to aggravation of his pes planus secondary to his knee condition, this would not be clinically expected and was not supported by records, or understood pathophysiology and biomechanics of acquired pes planus;" "the medial longitudinal arch is made up of the calcaneus, navicular, talus, first three cuneiforms, and first, second, and third metatarsals;" "it is supported by the soft tissues of the spring ligament (plantar calcanea navicular ligament), deltoid ligament, posterior tibial tendon, plantar aponeurosis, and flexor hallucis longus and brevis muscles;" "dysfunction of any portion of the medial longitudinal arch may result in acquired pes planus;" and "the main factors that contribute to an acquired flat foot deformity are excessive tension in the triceps surae, obesity, posterior tibial tendon dysfunction, or ligamentous laxity in the spring ligament, plantar fascia, or other supporting plantar ligaments. It may also result from a tight Achilles tendon or calf muscle." The examiner did not address whether the diagnosed lumbosacral strain was aggravated (increased in severity) due to the service connected disabilities. Therefore, further VA foot examination is needed. Stegall v. West, 11 Vet. App. 268 (1998). 3. Entitlement to service connection for a left shoulder disability is remanded. VA clinical documentation dated in March 2015, October 2015, and April 2016 states that the Veteran complained of left shoulder pain. A March 2015 treatment record states that the Veteran was diagnosed with advanced left shoulder degenerative joint disease. The report of a September 2019 shoulder examination conducted for VA states that no left shoulder disability was diagnosed. The examiner did not note or otherwise address the VA clinical documentation showing the Veteran's complaints of left shoulder pain and degenerative joint disease. Given such deficiency, the Board finds that the examination report is of essentially no probative value and further VA shoulder evaluation is needed. Clinical documentation dated after June 2019 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated him for any lumbosacral spine, foot, and left shoulder disabilities. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA clinical documentation not already of record, including treatment records dated after June 2019. 3. Schedule the Veteran for a VA spine examination, conducted by a physician who has not previously examined the Veteran, to assist in determining the nature and etiology of any lumbosacral spine disability and any relationship to active service and the service-connected disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all lumbosacral spine disabilities found or shown by the record. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified lumbosacral spine disability had its onset during active service or is related to any incident of service, including the documented falls. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified lumbosacral spine disability is due to or the result of the service-connected disabilities. (d) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified lumbosacral spine disability has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities. 4. Schedule the Veteran for a VA foot examination, conducted by a physician who has not previously examined the Veteran, to assist in determining the nature and etiology of any foot disability and any relationship to active service and the service-connected disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all foot disabilities found or shown by the record. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified foot disability had its onset during active service or is related to any incident of service, including the documented falls. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified foot disability is due to or the result of the service connected disabilities. (d) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified foot disability has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities. 5. Schedule the Veteran for a VA shoulder examination, conducted by a physician who has not previously examined the Veteran, to assist in determining the nature and etiology of any recurrent left shoulder disability and any relationship to active service and the service-connected disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all recurrent left shoulder disabilities found or shown by the record. If no left shoulder disability is identified, the examiner should specifically state that fact. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified recurrent left shoulder disability had its onset during active service or is related to any incident of service, including the documented falls. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified recurrent left shoulder disability is due to or the result of the service connected disabilities. (d) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified left shoulder disability has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities. J. T. HUTCHESON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Edward G. Lent 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.