Citation Nr: 21032164 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 13-20 183 DATE: May 26, 2021 REMANDED Entitlement to service connection for low back condition is remanded. Entitlement to a rating in excess of 10 percent for right foot hallux valgus bunionectomy of the big toe with pin fixation is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from April 1980 to May 1983. In January 2017, the Veteran appeared at a hearing before one of the Veterans Law Judges below. The Veteran presented sworn testimony at a hearing before a second Veterans Law Judge on the above two issues in December 2020. Generally, Veterans Law Judges who conduct hearings must participate in making the final determination of the claims involved. 38 U.S.C. § 7107 (c); 38C.F.R. §20.707. By law, appeals can be assigned only to an individual Veterans Law Judge or to a panel of not less than three members. 38 U.S.C. § 7102 (a). When a Veteran has hearings before two separate Veterans Law Judges during the appeal and these hearings covered one or more common issues, a third Veterans Law Judge is assigned to the panel after the second Board hearing has been held. The Court of Appeals for Veterans Claims (Court) has interpreted 38 C.F.R. § 20.707 as requiring that an appellant must be provided the opportunity for a hearing before all three Veterans Law Judges involved in a panel decision. Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). During the December 2020 Board hearing, the Veterans Law Judge advised the Veteran of his right to a third hearing before a third Veterans Law Judge. The Veteran waived his right to appear at an additional hearing before a third Veterans Law Judge, who would be assigned to decide his appeal. Accordingly, there is no impediment in issuing the panel decision herein. The Board notes the Veteran is currently employed; therefore, the issue of entitlement to a TDIU is not before the Board. See December 2020 Hr'g Tr. at 3. 1. Entitlement to service connection for low back condition is remanded. The Veteran seeks service connection for a low back condition that he asserts is the result of active duty service. See December 2020 Hr'g Tr. at 12. Specifically, the Veteran asserts that his low back injury is the result of a documented in-service basketball injury, carrying heavy backpacks during service or alternatively secondary to his service-connected knee and foot disabilities. Id. The Veteran's representative asserts that further development is warranted and that this issue should be remanded for further development, to specifically include another VA examination. The Veteran's service treatment records (STR) show treatment for low back injury from playing basketball. See January 1981 STR. Historically, the Veteran was afforded a back examination in June 2012. The examiner diagnosed the Veteran with lumbosacral strain. The VA examiner provided a negative nexus opinion regarding whether the Veteran's low back disorder was caused or aggravated by his in-service right foot bunionectomy. The examiner reasoned that the Veteran's in-service basketball injury to the lumbar spine was treated and resolved, and that there is no documented evidence of a chronic low back condition during service or immediately after discharge. See June 2012 Back DBQ. At the January 2017 Board hearing the Veteran testified that he has experienced low back pain on a continuous basis since discharge. See January 2017 Hr'g Tr. Accordingly, the Board remanded this issue for an addendum opinion in August 2017. At the December 2017 VA Back examination, the Veteran had diagnoses of degenerative arthritis of the spine, intervertebral disc syndrome and spinal stenosis. See December 2017 Back DBQ. The examiner noted that the Veteran has a history of chronic low back pain with left sided sciatica. The Veteran reported that the onset of his back condition was during service; however, he acknowledges the Veteran's STR showed no visit for back problems and his discharge physical notes do not show problems with the back. The examiner noted the Veteran reported constant severe pain in his back that radiates into his left leg. The Board notes that the December 2017 examiner provided a negative nexus opinion regarding secondary service connection. The examiner reasoned that the Veteran's back conditions would be unlikely related to his service-connected foot conditions, particularly with the onset many years after foot surgery and that they are not medically related. In March 2019, the Board again remanded this issue for an addendum opinion. Specifically, the June 2018 VA orthopedic surgeon opined that the Veteran's back disorder is not proximately due to his service-connected bilateral feet disabilities, but discussed pes planus, which is not a service-connected disability. Accordingly, the Board again remanded this issue to obtain an addendum opinion regarding the nature and etiology of the Veteran's low back disorder. The November 2019 VA Back examiner provided a negative nexus opinion. The examiner reasoned that there was no objective evidence to support ongoing and continuous treatment for low back condition since his exit from service and no new supportive evidence since his previous December 2017 examination. The Board notes, the Veteran's service treatment records show treatment for low back pain caused by playing basketball. See January 1981 STR. At the December 2020 Board hearing, the Veteran testified that he injured his low back during physical training and also while playing basketball during service. He testified that his low back pain has been recurrent since service. Id at 20. Additionally, the Veteran testified that his service-connected foot and knee disabilities have caused him to alter his gait and may have caused or aggravated his back condition. Additionally, the Veteran reported pain every day and receiving treatment for her right foot. See December 2020 Hr'g Tr. In January 2021, the Veteran's brother submitted a supporting statement that the since the Veteran has returned from service he has complained of low back problems. He stated, the Veteran did not have physical problems prior to service; however, upon returning home, it was apparent that he was self-medicating. He reported, the Veteran didn't drink prior to service but stated, the Veteran reported it was because of the intense pain he was experiencing. See January 2021 Buddy Statement. In view of the foregoing, the Board finds that a new VA examination and opinion is necessary to ascertain the nature and etiology of the Veteran's current low back disabilities. 2. Entitlement to a rating in excess of 10 percent for right foot hallux valgus bunionectomy of the big toe with pin fixation is remanded. The Veteran asserts that his right foot bunionectomy of big toe with pin fixation of the 2nd hammertoe disability is worse than the current 10 percent rating reflects. See December 2020 Hr'g Tr. The Veteran's representative asserts that further development is warranted and that this issue should be remanded for further development, to specifically include another VA examination. At the December 2020 Board hearing, the Veteran testified that his service-connected foot disability worsened since his foot surgery and last VA examination in November 2019. See December 2020 Hr'g Tr. Specifically, the Veteran testified that his foot condition has worsened and now requires an additional foot surgery and has caused further problems with his foot due to his altered gait. He testified, that the pain has increased, the bunion has returned and all of his symptoms are more severe. He reports swelling, the use of orthotics, special shoes, a special sock and a cane. The Veteran described his daily pain as 10 out of 10 and reported the regular use of muscle relaxers and pain medication. Id. The Veteran's right foot disability was last evaluated in November 2019. As such, the Board finds that a new VA examination is necessary to evaluate the current severity of his right foot disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997). These matters are REMANDED for the following actions: 1. Notify the Veteran that he may submit lay statements from herself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service low back symptoms and the nature, extent and severity of his right foot symptoms. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Schedule the Veteran for a VA examination to determine the nature, onset and etiology of low back conditions. The Veteran current diagnoses of the low back include degenerative arthritis of the spine, intervertebral disc syndrome and spinal stenosis, and lumbosacral strain. For any such functional impairment found to be present, the examiner is to provide an opinion whether it is at least as likely as not related to an in-service injury, event, or disease. If the examiner determines any such impairment is not directly related to service, then he or she should express an opinion as to whether it is at least as likely as not it was caused or aggravated by her service-connected disabilities. **The examiner must specifically acknowledge and discuss the Veteran's reports of an in-service basketball injury, back strain caused by carrying heavy backpacks and recurrent low back pain during and since service.** If the examiner determines any such impairment is not directly related to service, then he or she should express an opinion as to whether it is at least as likely as not it was 1) caused OR 2) aggravated by his service-connected disabilities. The examiner is specifically requested to acknowledge and discuss the impact of the Veteran's service-connected right knee, left knee, right foot and left foot disabilities, to include his report of an altered gait, on his low back conditions. The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Schedule the Veteran for a VA examination to determine the current nature, extent and severity of his right foot disability. The examiner should identify all right foot pathology found to be present. The examiner should conduct all indicated tests and studies. The joint should be tested in both active and passive motion and in weight-bearing and non-weight-bearing modes. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should, to the extent possible, identify which right foot symptoms and resulting functional limitations are attributable to the Veteran's service-connected right foot bunionectomy of the big toe with pin fixation of the second hammertoe. If the examiner determines that it is not possible to separate the effects of the Veteran's right foot symptoms, then he or she should explain why that is so. **In answering these questions, the examiner is asked to specifically address the Veteran's assertion that the severity of his right foot impairment resulted in an altered gait, which has caused additional foot disorders or his aggravated his current right foot disorder.** The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. PAUL SORISIO Veterans Law Judge Board of Veterans' Appeals GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Jordan, 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.