Citation Nr: 21040501 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 19-01 208 DATE: July 5, 2021 ORDER Service connection for an injury to muscle group XIX and its residuals is granted. REMANDED A claim for service connection for lower back disability is remanded. A claim for a compensable rating for the residual fragment wound scars of the left elbow, bilateral lower extremities, and buttocks, is remanded. FINDING OF FACT The evidence of record shows the residual scars and pain affecting the Veteran's ability to move from sitting to standing position were incurred due to the surgical treatment for his service-connected left leg disability. CONCLUSION OF LAW The criteria for service connection for a muscle group XIX injury and its residuals have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty from June 1970 to March 1972, to include his tour of duty in the Republic of Vietnam where he sustained multiple fragment wounds from a land mine blast in January 1971, was awarded Purple Heart, and was medically retired from service. In December 2015, the Regional Office (RO) denied his claim for a compensable rating for multiple scars, to include the left elbow, bilateral lower extremities, and buttocks. In a March 2016 rating decision, the RO denied service connection for lower back disability and an injury to muscle group XIX (claimed as muscle removal/damage and scar, right side abdomen/stomach removed and transplanted to service-connected left calf). The Veteran appealed. In December 2019, the Board denied all claims. The Veteran appealed the Board's decision to the United States Court for Veterans' Appeals (Court). In a November 2020 memorandum decision, the Court set aside the portions of the December 2019 Board's decision pertaining to service connection for lower back disability, injury to muscle group XIX, and an increased rating for scars to the left elbow, bilateral lower extremities, and buttocks, and remanded these claims for further development. Upon reviewing all evidence of record afresh, viewed in light of the Court's remand directives, and notwithstanding that the Veteran's disabilities have been comprehensively covered by a total disability due to individual unemployability (TDIU) rating including multiple special monthly compensations since 2002, the Board has found that service connection for an injury to muscle group XIX and its residuals is warranted, while the claims for service connection for lower back disability and for a compensable rating for scars must be remanded. Service connection is granted for a disability caused by or proximately due to an existing service-connected disability, to include any treatment and any residuals thereof, which is the case here. See 38 C.F.R. § 3.310. In this case, a January 2019 VA examination report unequivocally shows that the Veteran had undergone a June 1983 right abdominal muscle flap surgery for skin graft for his service-connected left leg chronic venous statis disease, which is not in dispute here. Rather, the issue is whether the Veteran has the claimed disability for VA purposes. The examiner noted that the surgery has affected the Veteran's muscle group XIX, to include muscles of the abdominal wall, rectus abdominis, external oblique, internal oblique, transversalis, and quadratus lumborum on the right side. The examiner then observed a residual scar on the right side abdominal and inguinal areas and noted the Veteran's report that he may intermittently feel a "sting" or "twinge" to the right abdominal area where the muscle was harvested, while stating that he will notice this when he has to stand up. Given the evidence of the residual scar and intermittent pain flare-ups affecting the Veteran's ability to move from sitting to standing position, which are clearly due to the residuals of surgical treatment for his service-connected left leg disability, service connection for an injury to the muscle group XIX and its residuals is granted. REASONS FOR REMAND In seeking service connection for lower back disability, namely, degenerative arthritis of the lumbar spine, the Veteran is contending that this disability has developed over many years due to his abnormal gait altered by his service-connected left leg disability. At the outset, the Board notes that every disability must be considered in context of its history. In July 1971, the Medical Board noted that the Veteran had shown some hill cord tightness secondary to the contracture due to the multiple fragment wounds to his lower extremities, which resulted in continued difficulties engaging obstacles and rough terrain. Physical examination approximately six months after the initial injuries revealed that the multiple sutures were still present in both legs, while noting a large (15x7 cm) defect over the lateral aspect of his left leg calf. A September 2007 VA leg condition examination report reflects that the Veteran's continues to have problems with his left leg, to include difficulties with ambulation and locomotion, having to use a leg brace since 2003 along with two canes but able to use only one due to the limitations of his service-connected wrist disability, having to sleep 60 to 70 percent of the time in a chair with his legs elevated, and unable to effectively use his back because his legs do not sufficiently support him. In March 2015, the Veteran had entirely lost a use of his left leg. A January 2016 VA examination reflects the Veteran's report of onset of back pain in 1985, following his abdominal flap and left leg skin graft surgeries in June 1983. A January 2016 X-ray report shows degenerative arthritis of the lumbar spine. In 2018, the Veteran has completely lost a use of both lower extremities. A January 2019 VA examination report reflects an opinion that it is less likely as not that the Veteran's lumbar spine arthritis is etiologically related to his left leg condition. The Court has observed that there is little rationale beyond the stated conclusion in the examiner's opinion. The examiner explains: "The lumbar spine is a separate anatomical joint/area of the body from the veteran's left leg." The examiner further states: "After review of all records provided for review, there is no medical, clinical, or significant research evidence to support the contention that the veteran's claimed back, diagnosed as multilevel degenerative arthritis of the lumbar spine, is proximately due to or the result of left leg condition." These statements suggest that in forming the opinion the examiner relied exclusively on "records provided for review," without any indicia of relying on general medical knowledge at large or otherwise consulting pertinent medical treatises. Moreover, the examiner has not even acknowledged the evidence discussed above, which does show that the Veteran has experienced an onset of back pain and an abnormal gait after undergoing the surgeries, while subsequently underusing his back and sleeping in a crooked position for many years, all due to his service-connected left leg disability. This evidence analytically aligns with the Veteran's contention that his lower back arthritis has developed over many years due to the impact of his lower extremities on how he sleeps, sits, stands, and walks, and does suggest a conceivable proximate causation or aggravation. To that end, a supplemental medical opinion is necessary to decide the claim. Upon further considering the Veteran's claim for a compensable rating for his scars to the left elbow, bilateral lower extremities, and buttocks, the Court observed that the claim was denied apparently due to an arithmetical error, given that the total area of the Veteran's bilateral leg scars is over 35 square inches and is significantly greater than the six-square-inches threshold for a compensable rating. The Board further notes that the scars of the bilateral lower extremities have been considered incidentally to the VA knee examination, while the evidence of record fails to show that the residual scars of the left elbow and buttocks have ever been re-evaluated since 1972. As such, the Board finds that a VA comprehensive scare evaluation must be provided. Accordingly, the matters are REMANDED for the following actions: 1. Obtain a supplemental medical opinion as to the etiology of the Veteran's lumbar spine arthritis. If the examiner determines that an in-person examination is necessary to answer the Board's questions, one must be provided. The examiner is asked to answer the following questions: a) Is it at least as likely as not (meaning 50 percent probability or greater) that the Veteran's lumbar spine arthritis was caused by or proximately due to any of his service-connected disabilities, be it individually or collectively, to include an abnormal gait developed as a result of his service-connected left lower extremity disability? Why or why not? b) Is it at least as likely as not (meaning 50 percent probability or greater) that the Veteran's lumbar spine arthritis was aggravated (made worse) by any of his service-connected disabilities, be it individually or collectively, to include an abnormal gait developed as a result of his service-connected left lower extremity disability and the eventual loss of its use? Why or why not? The examiner must review the entire claims file, to include this order and the Court's order (marked "11/23/2020 CAVC Decision") explaining the reasons why the January 2019 VA examination was found inadequate. In answering the Board's questions the examiner must review and expressly discuss the Veteran's statements as to the onset and continuity of symptomatology, and his specific contentions. In forming the opinions, the examiner must provide sound rationale connecting the specific facts and data to the conclusions reached and must clearly cite to any medical treatises relied upon. 2. Evaluate the current severity levels of the Veteran's scars of the left elbow, bilateral legs, and buttocks. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alex Bardin, 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.