Citation Nr: 21040972 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 14-28 782 DATE: July 7, 2021 REMANDED Entitlement to service connection for a low back disability, to include as secondary to service-connected seizure disorder, is remanded. REASONS FOR REMAND The Veteran had active military service from December 1967 to March 1969. The Board previously remanded this matter in October 2017, May 2018, and January 2021 for further development. However, the January 2021 remand directives with respect to the secondary service connection claim have not been substantially complied with and therefore another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). The Board additionally notes that in written March 2021 correspondence, the Veteran, through his representative, noted that he did not wish to appeal the Board's remand decision from January 2021. However, as a remand is not a final decision, the Board will continue with adjudicating the matter. Entitlement to service connection for a low back disability, to include as secondary to service-connected seizure disorder, is remanded. Although the Board sincerely regrets the additional delay caused by yet another remand, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran contends that his low back disability is a result of service. Alternatively, he contends that his low back disability is secondary to his service-connected seizure disorder, as a result of injuries sustained during falls associated with his seizures. See Statement in Support, March 2021. The Veteran had several VA examinations regarding his low back disability. However, the Board cannot make a fully-informed decision on the issue of secondary service connection for a low back disability. A remand is necessary to obtain a new medical opinion regarding his secondary theory of entitlement to service connection. Although the Board previously requested the same in the last remand, the April 2021 opinion relied on an inaccurate factual premise as the basis for a negative medical opinion. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based on an inaccurate factual premise has no probative value). Specifically, the April 2021 opinion notes the Veteran was injured at work in November 1970. This fact originated in the December 2008 rating decision which the Veteran disputed. Upon review, the Agency of Original Jurisdiction determined in the March 2010 Statement of the Case that the injury pertained to another individual. However, this injury was noted again in the April 2021 opinion. Because the April 2021 medical opinion is based on an inaccurate factual premise, it is of no probative value. Consequently, another medical opinion must be obtained. As noted, the Board remanded the claim in October 2017, for a medical opinion to address the nature and etiology of the Veteran's current back disability. The Board additionally remanded in May 2018, finding the previous February 2018 VA medical opinion was based in part, upon the inaccurate factual premise that the Veteran sustained a work-related injury in November 1970 while working as a prison guard. See May 2018 Board remand. The Board further remanded in September 2020, as the medical examiner relied upon the February 2018 opinion in which the Board found to have no probative value. The Veteran underwent a Back (Thoracolumbar Spine) Conditions examination in September 2020. A September 2020 diagnosis of degenerative arthritis of the spine was noted. Back flare-ups were noted, that occurred on a daily basis and were described as severe. Functional loss during a flare-up included difficulty with sitting, standing, walking, bending, and transferring from wheelchair. Following the January 2021 Board remand, the Veteran was afforded a VA addendum medical opinion in April 2021. Regarding secondary service-connection, the examiner opined that it was less likely than not that the Veteran's degenerative spine disease was due to his seizure disorder and/or related to falls. The examiner noted that no such falls or spinal injury were documented. Further, the examiner noted that seizures do not cause degenerative spine disease, and in the absence of evidence of traumatic injury to the spine, falls would not cause degenerative spine disease. Additionally, the examiner opined that spinal taps do not cause degenerative spine disease. The Board finds that none of the VA examinations considered all of the relevant and probative evidence of record or adequately addressed whether the Veteran's low back disability was proximately due to, the result of, or aggravated beyond its natural progression by his service-connected seizure disorder. The Board notes that the 2021 VA examiner opined that the Veteran's degenerative spine disease was less likely than not a result of his falls, as no documentation of spinal injuries during falls were noted. However, the examiner also noted a 1970 back injury that was determined in 2010 to not be correlated to this Veteran. In addition, the examiner did not address the documented falls associated with his seizure disorder and the impact those falls had on his low back disability. Accordingly, a remand is necessary to obtain a medical opinion that properly evaluates whether the Veteran's diagnosed low back disability is secondary to his service-connected seizure disorder, including the documented falls associated with his seizures. In light of the foregoing, the Board finds that there has not been substantial compliance with its January 2021 remand. See Stegall, 11 Vet. App. 268. As the case is being remanded, the Veteran should be given another opportunity to identify any records of private medical treatment that he would like to submit or have VA obtain. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's low back disability. For each low back disability diagnosed during the appeal period, the examiner should provide an opinion regarding: (a.) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's low back disability is proximately due to or caused by his service-connected seizure disorder, to include as due to falls resulting from his seizures, and including as a result of treatment and/or medication taken for his seizure disorder. (b.) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's low back disability was aggravated (worsened in severity beyond a natural progression) by his service-connected seizure disorder, to include as due to falls resulting from his seizures, and including as a result of treatment and/or medication taken for his seizure disorder . When rendering an opinion, the examiner is asked to specifically consider the following evidence: September 2020 Medical Opinion indicating that the Veteran's diagnosed back disability has been associated with repeated trauma, such as falls. See September 2020 VA Back (Thoracolumbar Spine) Conditions Opinion (noting that the Veteran's diagnosed degenerative disc disease of the lumbar spine "is a condition that can be caused by repeated trauma, such as falls..."); February 2019 VA Orthopedic Surgery Consult (noting that the Veteran suffered "20 falls in 2 weeks" as a result of his epilepsy; March 2015 VA Neurology Note (reflecting that the Veteran "blacked out.. and fell on [his] driveway"); August 2014 neurology note reporting the Veteran fell in July onto the steps and hurt 1 leg. A complete rationale for all opinions reached should be provided. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, 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.