Citation Nr: 21030768 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 11-03 647 DATE: May 19, 2021 REMANDED Entitlement to service connection for the Veteran's lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1974 to December 1994. This matter comes before the Board of Veteran's Appeal (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2016, the Board remanded, among other issues, the issue of entitlement of service connection for the Veteran's lumbar spine disability. The case then returned to the Board and, in a March 2019 decision, the Board denied the Veteran's claim for service connection for his lumbar spine disability. Subsequently, the Veteran appealed this decision to the United States Court of appeals for Veterans Claims (Court). In a June 2020 Memorandum Decision, the Court vacated and remanded the Board's March 2019 decision. The case has now returned to the Board for appellate review and, although it again regrets further delay, the Board finds that additional remand is required. Entitlement to service connection for the Veteran's lumbar spine disability is remanded. The Board finds that this claim must be remanded for an addendum opinion. See April 2021 Correspondence from the Veteran's representative. Here, the VA examiners opined that it was less likely than not that the Veteran's disc degenerative disease (DDD) of the lumbar spine was caused or aggravated to any degree by his military service. See VA Medical Opinions dated September 2009, May 2016, and January 2018. The examiners also opined that it was less likely than not that the Veteran's DDD was caused or aggravated by his service-connected orthopedic disabilities. Id. In support of this conclusion, the September 2009 examiner opined that the Veteran's abnormal gait was related to the Veteran's diffuse idiopathic skeletal hyperostosis and that there was no evidence that the Veteran's lower back issues stemmed from service or his service-connected orthopedic disabilities. Further, the May 2016 examiner found that the Veteran's DDD was related to the normal aging process of the spine rather than any in-service injury, illness, or event. See May 2016 VA Medical Opinion. The January 2018 examiner also opined that his DDD was age-related rather than related to his abnormal gait due to his service-connected orthopedic conditions. See January 2018 Medical Opinion. However, these examiners failed to adequately address whether the Veteran's orthopedic conditions aggravated his DDD disability. Additionally, although the May 2016 and January 2018 examiners determined that the Veteran's DDD was age-related, they failed to consider whether the Veteran's age-related spinal changes began in service, as the Veteran retired from service when he was 41 years of age. Therefore, the Board finds that VA medical opinions are inadequate for adjudicative purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the Board finds that an addendum opinion is also necessary to comment on the medical literature submitted by the Veteran. The Veteran submitted medical literature that noted that if antalgic gait is present for an extended period of time, it may have an impact on the back. See Harrington, Jan, Medical Discussion Pape -Symptoms in the Opposite or Uninjured Leg (August 2005). Here, the Veteran contends that he has had an abnormal gait since he injured his ankle, right knee, and hips during service. See April 2021 Correspondence. Therefore, the Board finds that an addendum is necessary to determine whether the Veteran's abnormal gait, which the Veteran contends has existed for many years, has aggravated his DDD disability. Based on the foregoing deficiencies, an addendum opinion is warranted. See 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 an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The addendum opinion should give specific consideration to the Veteran's theory of the casethat is, his lower back pain is due to his abnormal gait which was caused by his ankle, knee, and hip conditions. See April 2021 Correspondence. The VA examiner should also give special consideration to the Veteran's age when addressing whether the Veteran's DDD began during service due to age-related wear and tear. The examiner should also address whether the Veteran's abnormal gait aggravated his DDD disability. In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran's own descriptions of the history of his lumbar spine disability. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: 1. The RO should send the claims file to an appropriate VA examiner who has not previously participated in this case for an addendum opinion as to whether the Veteran's DDD is related to service. The claims file, including a copy of this Remand, must be made available to and be reviewed by the examiner in conjunction with the examination. If a clinical evaluation is deemed necessary to answer the questions presented, one should be scheduled. The claims file, and a copy of the remand, must be reviewed by the examiner. A notation indicating that the claims file and remand was reviewed should be included in the examination report. Following review of the file and this remand, the examiner is to address the following: (a.) For each diagnosed condition, the examiner(s) should state whether it at least as likely as not that the condition (1) began during any period of active service, (2) manifested within a year after discharge from active service, (3) was noted during service with continuity of the same symptomatology since service, or (4) was related to any other aspect of the Veteran's service. (b.) In further providing a response to Part (3), please consider the Veteran's age at the time of his initial diagnosis of DDD and directly address the fact that the Veteran separated from active duty service at the age of 41 (and thus whether he is likely to have begun to develop degenerative changes of the spine prior to his separation from service). (c.) Please state whether it is at least as likely as not the Veteran's DDD disability was caused by the service-connected bilateral hip conditions. (d.) If you determine that the Veteran's bilateral hip conditions did not cause his DDD, please state whether it is at least as likely as not that the Veteran's DDD disability was aggravated by his service-connected bilateral hip conditions. Here, aggravated means worsened beyond the natural progression of the condition. The examiner's opinion should reflect consideration of the Court's holding in Ward v. Wilkie that aggravation need not be permanent in nature. Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019); 38 C.F.R. § 3.310(b). (e.) Please state whether it is at least as likely as not the Veteran's DDD disability was caused by the service-connected right knee disability. (f.) If you determine that the Veteran's right knee condition did not cause his DDD, please state whether it is at least as likely as not that the Veteran's DDD disability was aggravated by his service-connected right knee disability. Here, aggravated means worsened beyond the natural progression of the condition. The examiner's opinion should reflect consideration of the Court's holding in Ward v. Wilkie that aggravation need not be permanent in nature. Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019); 38 C.F.R. § 3.310(b). (g.) Please state whether it is at least as likely as not the Veteran's DDD disability was caused by the service-connected right ankle disability. (h.) If you determine that the Veteran's right ankle disability did not cause his DDD, please state whether it is at least as likely as not that the Veteran's DDD disability was aggravated by his service-connected right ankle disability. Here, aggravated means worsened beyond the natural progression of the condition. The examiner's opinion should reflect consideration of the Court's holding in Ward v. Wilkie that aggravation need not be permanent in nature. Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019); 38 C.F.R. § 3.310(b). (i.) In further providing a response to Parts (b) through (f), please accept as true the Veteran's assertion that his abnormal gait existed for many years and comment on whether it has aggravated the Veteran's lumbar spine disability. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements). (j.) In rendering the opinion, the examiner must consider and reference the Medical Discussion Pape -Symptoms in the Opposite or Uninjured Leg released August 2005, indicating that long-term abnormal gait has a cumulative negative effect on the back. See Harrington, Jan, Medical Discussion Pape -Symptoms in the Opposite or Uninjured Leg (August 2005). A discussion of the underlying reasons for any opinion expressed must be included in your report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. If you cannot provide the requested opinion without resorting to speculation, please expressly indicate this and state why that is so (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Foster, 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.