Citation Nr: 21040142 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 15-34 263 DATE: July 2, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served honorably on active duty from January 1980 to June 1987. This appeal comes to the Board from an August 2013 rating decision. The Veteran died in August 2019, and VA found the Veteran's wife to be a proper substitute party for the purpose of continuing the appeal in December 2019. The Board remanded this matter in February 2019 and July 2020. In July 2020, the Board noted that the United States Court of Appeals for Veterans Claims (CAVC) clarified that aggravation under 38 C.F.R. § 3.310(b) does not require there be permanent worsening of the nonservice-connected disability. See Ward v. Wilkie, 31 Vet. App. 233 (2019). The Board found the prior VA examinations addressed causation under 38 C.F.R. § 3.310(a) without addressing aggravation, and the Board remanded to obtain an addendum opinion addressing aggravation under Ward. After reviewing the record, the Board finds additional development is needed to ensure VA follows the Board's remand directives and obtains adequate medical opinions. VA did not obtain an opinion as the Board instructed and instead cancelled the examination it scheduled in October 2020 because the Veteran died. However, the Board did not order an in-person examination of the deceased Veteran, and there is no compelling basis in the record to find VA is not capable of obtaining the opinion the Board requested. An October 2020 Report of General Information in the file indicates the appellant did not wish to submit additional evidence. However, the appellant's representative clarified in a June 2021 Written Brief Presentation that the appellant wants VA to follow the Board's prior remand directives and obtain the medical opinion. The representative requests the Board remand this matter to ensure VA follows the remand orders. Therefore, VA should obtain the medical opinion on aggravation as the Board instructed in July 2020. Additionally, upon further review, the Board finds VA should obtain another medical opinion on direct service connection. The prior VA examiner's opinion from July 2013 does not address favorable evidence. The July 2013 VA lumbar spine examiner indicated the Veteran's documented reports of back pain in his service records were due to urinary tract infections and that his current back disability was "probably" due to his post-service work as a mail carrier. The Veteran indicated the examiner's rationale is speculative and noted on his July 2015 Appeal to Board of Veterans' Appeals that he jumped from the second story of a hotel and landed in the snow during service. The Veteran's service treatment records from February 1987 document his account of this incident. They indicate he suffered from injuries including frostbite. The VA examiner did not address the Veteran's claims of continuity of symptoms including pain since service or his reports of a fall in February 1987. VA should obtain an opinion on whether it is at least as likely as not (an approximate balance of negative and positive evidence) that the Veteran's back disability manifested during or was otherwise caused by events during his military service to include the fall. The Board REMANDS this matter for the following actions: 1. VA should contact the appellant and her representative and request their assistance in identifying any outstanding relevant records. VA should make reasonable attempts to obtain all identified outstanding records and associate them with the file. 2. After associating all outstanding relevant records with the file, VA should obtain an additional medical opinion. As the Veteran is deceased, VA should not order an in-person examination but should obtain an opinion based on a review of the claims file instead. VA should ensure the medical professional addresses the following concerns: (a.) The medical professional should identify all back disabilities that the Veteran experienced in his life based on a review of the claims file. "Disabilities" include functional impairment of earning capacity due to the Veteran's reports of pain even if there is no specific diagnosis. (b.) The medical professional should opine whether it is at least as likely as not (an approximate balance of negative and positive evidence) that each back disability first manifested during or was otherwise caused by events during the Veteran's military service. The medical professional should provide adequate rationale. The rationale should discuss the Veteran's lay statements about the history of his disability in the context of other pertinent evidence. For example, the service records show many reports of back pain and documented reports of a fall out of the second story of a building in February 1987. (c.) The medical professional should opine whether it is at least as likely as not (an approximate balance of negative and positive evidence) that arthritis of the spine manifested within one year of the Veteran's separation from active duty. See 38 C.F.R. § 3.309(a). (d.) The medical professional should also opine whether it is at least as likely as not (an approximate balance of negative and positive evidence) that service-connected knee disabilities caused or aggravated the Veteran's lumbar spine disabilities. The aggravation does not have to be permanent. Temporary aggravation may suffice for secondary service connection. See Ward v. Wilkie, 31 Vet. App. 233 (2019). The examiner should provide adequate rationale considering the Veteran's claim that the altered gait caused by his knee disabilities affected his back. See June 2021 Written Brief Presentation; July 2015 Appeal to Board of Veterans' Appeals A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Duffy, Michael 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.