Citation Nr: 21031317 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 17-64 042 DATE: May 21, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a right ankle disability, to include as secondary to a lumbar spine disability, is remanded. Entitlement to service connection for a left ankle disability, to include as secondary to a lumbar spine disability, is remanded. REASONS FOR REMAND The Veteran had active service from July 1966 to June 1968. The Veteran seeks service connection for lumbar spine and bilateral ankle disabilities. At an October 2019 hearing before the undersigned Veterans Law Judge (VLJ), the Veteran testified that in service he parachuted from helicopters and that there were times he did not land properly. He asserts that these hard landings caused his lumbar spine and bilateral ankle disabilities. Alternatively, he asserts that his bilateral ankle disability is secondary to his lumbar spine disability. In October 2017, the Veteran underwent VA examinations to determine the etiologies of these disabilities. The examiner confirmed diagnoses of degenerative arthritis and degenerative disc disease of the lumbar spine and bilateral calcaneal bone spurs in the ankles. The examiner opined against direct service connection for the Veteran's lumbar spine and ankle conditions, but her opinions were insufficient. Specifically, the 2017 VA examiner based her negative etiology opinions on the Veteran's service treatment records which do not show complaints of lumbar spine or ankle symptoms and on his post-service employment as a railroad conductor for 30 years. The examiner did not discuss whether the Veteran's in-service helicopter jumps could have caused or contributed to his current lumbar spine and bilateral ankle disabilities, regardless of whether he sought treatment in service. Given that the Veteran testified before the Board that he did not seek treatment earlier for the appealed conditions because he is an "old country boy" and just pushed through his symptoms, new etiological opinions are needed to address these relevant facts before the Board can decide his claims. Also, the Veteran's lay reports of the onset of his lumbar spine and bilateral ankle symptoms are unclear. He testified that he first began experiencing his symptoms in the 1980s. However, he also seemed to provide testimony which indicated his symptoms began during service. As such, on remand, the VA examiner must also obtain a clear history from the Veteran regarding the onset of the symptoms of his lumbar spine and bilateral ankle disabilities. In a December 2017 statement, the Veteran questioned the qualifications of the 2017 VA examiner because she was a nurse practitioner and not an orthopedist. Although the Board does not find the examiner unqualified at this time, to comply with the Veteran's wishes, VA examinations on remand should be performed by an orthopedist. If an orthopedist is not available, such should be noted in the Veteran's claims folderas well as all attempts to schedule an examination with an orthopedist. These matters are, thus, REMANDED for the following actions: 1. Obtain VA treatment records from October 2017 to present. 2. After all outstanding medical records have been associated with the claims file, schedule the Veteran for an appropriate VA examination with an orthopedist to determine the nature and etiology of any lumbar spine disability and right and left ankle disability(ies) he may have. Attempts to schedule this orthopedic evaluation with an orthopedist should be annotated in the Veteran's claims folder. If an orthopedist is not available, such should be annotated in the claims file. The examiner should have an opportunity to review the claims folder in conjunction with this examination. The examiner should also obtain a detailed history of the onset of the Veteran's lumbar spine and bilateral ankle symptoms from the Veteran. Any testing deemed necessary should be completed. (a.) Then, and with regard to the Veteran's lumbar spine condition, the examiner should: (i.) identify every lumbar spine condition with which the Veteran has been diagnosed at any time during the appeal period (from November 2016 to present), including, but not limited to, arthritis, and degenerative disc disease (as noted in the October 2017 VA back conditions examination report). (ii.) is it at least as likely as not (i.e., 50 percent probability or greater) that any such diagnosed lumbar spine disability onset in, or is otherwise related to, the Veteran's active service, to include his reported hard landings from parachuting out of helicopters? (b.) With regard to the Veteran's ankles, the examiner should: (i.) identify every ankle condition with which the Veteran has been diagnosed at any time during the appeal period (from November 2016 to present), including, but not limited to, bilateral calcaneal spurs (which was noted in the October 2017 VA ankle examination report). (ii.) Is it at least as likely as not (i.e., 50 percent probability or greater) that any such diagnosed ankle disability onset in, or is otherwise related to, the Veteran's active service, to include his reported hard landings from parachuting out of helicopters? (iii.) Is it at least as likely as not (i.e., 50 percent probability or greater) that any such diagnosed ankle disability was caused by any diagnosed lumbar spine disability? (iv.) Is it at least as likely as not (i.e., 50 percent probability or greater) that any such diagnosed ankle disability was aggravated (i.e., made worse) by a diagnosed lumbar spine disability? If so, the examiner should identify the degree of impairment that is due to such aggravation. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or is the result of an exhaustion of the limits of current medical knowledge in providing an answer to that particular question. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.