Citation Nr: 21040069 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 07-18 642 DATE: July 2, 2021 REMANDED Entitlement to service connection for a back condition, to include as secondary to service-connected residuals of left great toe proximal phalanx non-displaced fracture (left foot condition), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1981 to December 1984, as well as additional periods of service in the Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision issued by a Department of Veterans Affairs (VA) regional office. This matter was previously remanded by the Board in December 2010, October 2013, July 2016, March 2018, December 2019, July 2020, and January 2021. In a December 2018 decision, the Board, inter alia, denied the Veteran's claim of entitlement to service connection for a back condition. The Veteran appealed the Board's decision to the United State Court of Appeals for Veterans Claims (Court). In August 2019, the parties entered into a Joint Motion for Partial Remand (JMPR), in which the parties agreed that a remand of the claim was warranted as the August 2016 VA etiological opinion, on which the Board relied, was based on inaccurate factual premises; namely, that the Veteran's service treatment record was silent for any back injuries. In September 2021, the Court granted the JMPR and remanded the claim for further development. As an initial matter, the Board notes that, in August 2010, the Veteran testified via video conference before a Veterans Law Judge (VLJ) and a copy of the hearing transcript has been associated with the electronic claims file. See August 2010 Board Hearing Transcript. In January 2018, the Veteran was notified that the VLJ who conducted the August 2010 hearing was no longer with the Board and was asked whether he desired to have another hearing. See January 2019 Board Correspondence. To date, the Veteran has not requested an additional hearing. As such, the Board will proceed accordingly. Additionally, the Board notes that VA is required to consider all theories of entitlement to VA benefits, including via secondary service connection, that are either raised by the claimant or reasonably raised by the record. See Schroder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000); Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008). Here, the Veteran, through his representative, has asserted that his back condition may be related to his service-connected left foot condition. See June 2021 Appellate Brief. Accordingly, the Board finds it appropriate to recharacterize the Veteran's claim as one of entitlement to service connection for a back condition, to include as secondary to service-connected left foot condition. Entitlement to service connection for a back condition, to include as secondary to service-connected left foot condition, is remanded. The Board regrets the delay associated with this remand, particularly given the lengthy procedural history associated with this claim. However, based on a review of the evidence of record, the Board finds that another remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to obtain an adequate opinion regarding the etiology of the Veteran's back condition. In March 2021, the Veteran was afforded a VA examination in which the examiner opined that the Veteran's back condition was less likely than not related to his active duty service, as any isolated strains he may have incurred in service would have resolved long ago. In support of this opinion, the examiner noted that degenerative changes occur when there is either a traumatic injury and/or due to the cumulative effects of prolonged and repetitive non-traumatic stresses such weight gain, high-impact activities, and gradual physical deconditioning through the years. The examiner also noted that the Veteran had marked weight gain and a 30-year history of working fairly physically demanding civilian jobs since separating from service. See March 2021 VA Back Conditions Disability Benefits Questionnaire (DBQ); March 2021 VA Medical Opinion DBQ. However, the Board finds that the March 2021 opinion does nor substantially comply with the Board's January 2021 remand instructions as the examiner did not address the September 2010 positive nexus opinion provided by the Veteran's VA treating physician, the Veteran's lay statements, or the lay statement submitted by the Veteran's spouse. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the examiner did not cite any medical literature to support the conclusion that the Veteran's in-service back injuries would have resolved long ago, nor did the examiner elaborate as to why the Veteran's back condition was attributable to his weight gain and civilian jobs rather than his in-service back injuries. Therefore, the Board finds this to be conclusory, and as such, inadequate. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In April 2021, a VA etiological opinion was obtained, in which the examiner opined that the Veteran's current back condition was less likely than not related to his active duty service. In support of this opinion, the examiner noted that there was no chronic or recurrent back problems documented in the Veteran's service treatment records (STRs) or immediate post-separation period, and that his post-service medical records did not document a chronic or recurrent back problems until after a 1999 work injury. The examiner also noted that a condition must be considered "chronic" before a nexus for service connection can be established, and as there was no record of a chronic condition in the Veteran's STRs or in the period immediately following separation from service, a nexus for service connection could not be made. The examiner acknowledged the 2010 positive nexus opinion but stated that such opinion took no objective evidence in mind. The examiner also acknowledged the Veteran's and his spouse's lay statements but stated that such statements could not overside clear documentation of onset of chronic back pain after the 1999 work injury. See April 2021 VA Medical Opinion DBQ. However, the Veteran is competent to report the onset and progression of symptomatology, and an opinion based on the absence of treatment records without consideration of competent lay reports is inadequate. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007). Additionally, the Veteran's medical records demonstrate reports of recurrent back pain as early as September 1988. See Woodland Medical Center records, received November 2004; Detroit Medical Center records, received November 2004. As such, the opinion appears to be based, in part, on an inaccurate factual premise and, therefore, is inadequate. See Reonal v. Brown, 5 Vet. App. 458 (1993). Additionally, an opinion is inadequate when, as indicated here, an examiner fails to consider the Veteran's prior medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Further, in formulating his opinion, the examiner appears to have applied the criteria for service connection on a presumptive basis for chronic diseases. See 38 C.F.R. § 3.307, 3.309. While whether the Veteran's back condition was diagnosed as chronic in service or within one year following service, or noted therein with continuity of symptomatology thereafter, is certainly relevant in determining whether service connection for the Veteran's back condition is warranted on a presumptive basis, it is not relevant in determining whether or not his back condition is etiologically related to his active duty service. Lastly, as noted above, entitlement to service connection secondary to service-connected left foot condition has been raised by the record. As neither the March 2021 nor April 2021 etiological opinion addresses service connection on a secondary basis, neither examination can be considered adequate with respect to such. For these reasons, the Board finds the March 2021 and April 2021 etiological opinions to be inadequate for adjudication purposes. As such, a remand is necessary to afford the Veteran with an adequate examination regarding the severity of service-connected depression. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the matter is REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the electronic claims file any outstanding medical treatment records, whether VA or private, including treatment at Atlanta VA Medical Center from April 2021 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. After completing the development above, and any additional development warranted by the record, obtain an opinion from an appropriate clinician regarding the nature and etiology of the Veteran's claimed back condition. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, an examination should be scheduled and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) If an examination is conducted, obtain the Veteran's detailed lay history, including onset and progression of symptomatology and employment. (b.) For each diagnosed back condition, provide the following opinions: i. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service, to include any periods of ACDUTRA or INACDUTRA. ii. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition is caused by his service-connected left foot condition. iii. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition underwent an incremental increase (aggravated), regardless of permanence, due to his service-connected left foot condition. (c.) In formulating the requested opinions, the examiner is instructed to consider and specifically address: i. The Veteran's lay history; ii. The Veteran's reported in-service back injury in 1983 and 1992 back injury during Army Reserve training; iii. The August 2017 spousal statement; iv. The September 2010 positive nexus opinion from the Veteran's VA treating physician; and v. The articles cited by the Veteran's representative in the June 2021 appellate brief in support of a relation between the Veteran's back condition and his service-connected left foot condition. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner is further reminded that the mere absence of in-service evidence of a condition as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT ACTION IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.