Citation Nr: 21042788 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-54 306 DATE: July 13, 2021 REMANDED Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected bilateral foot disorders is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from March 1980 to April 1992 and from March 2003 to March 2004. The Veteran had additional service in the reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision issued by a Department of Veteran Affairs (VA) Regional Office (RO). The Board remanded the issue in December 2018 and January 2020 for further development. In January 2020, the Board remanded the issues of entitlement to service connection for a lumbar spine disability, entitlement to service connection for a right foot condition, and entitlement to service connection for a left foot condition. In an August 2020 rating decision, the RO granted service connection for right foot hallux valgus status post bunionectomy, service connection for bilateral plantar fasciitis, left foot hallux valgus, right foot surgical scar as secondary to the service-connected disability of right foot hallux valgus status post bunionectomy, and granted special monthly compensation based on housebound criteria. As a result, the issues of entitlement to service connection for a right foot condition and service connection for a left foot condition are no longer on appeal because the benefit has been granted in full. Additionally, the Veteran has not disagreed with the evaluation or effective date of the grants of service connection for a right foot condition and a left foot condition. Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected bilateral foot disorders is remanded. The Veteran asserts that his lumbar spine disability was incurred due to years of physical impact in service from carrying heavy combat loads routinely exceeding 70 or more pounds, as well as from arduous field and training exercises. In January 2020, the Board remanded the issue for further development. In February 2020, the Veteran was afforded a VA examination for his back. He was diagnosed with degenerative arthritis of the spine. The VA examiner opined that it was less likely than not that the Veteran's back disability was incurred in or caused by an in-service injury, event, or illness. The Veteran's medical records did not support the complaint, symptoms, diagnosis, imaging, or treatment for low back pain while he was in service. Given the fact that the Veteran had been out of service since 2004, without evidence of previous low back complaints while in service, it was less likely than not that the claimed low back condition (less than 50 percent probability) was due to or incurred by the bilateral foot, and/or bilateral heel disabilities, or had their onset in and/or were otherwise related to a period of active service. Also, it was not noted between the dates of active duty service; therefore, it was not likely pre-existing to the second active duty dates. Arthrosis was a degenerative process of the spine; it was not possible without mere speculation to discern if the arthrosis was aggravated by the Veteran's time in service, and his chronic feet condition as there was no true baseline noted in the records. The Veteran had multiple military occupational specialties in service, but his back was noted as normal on medical clinical evaluations dated October 1979, April 1982, April 1988, April 1992, and March 1999. The Veteran's first complaint of back pain was noted in the records from 2014, which was 10 years after the Veteran separated from service. The examiner could not correlate chronicity with service. The February 2020 VA medical opinion is inadequate. The VA examiner did not fully consider the Veteran's lay statements that carrying heavy combat loads of 70 pounds or more over rough terrain during repeated conditioning hikes, tactical movement, exercises, and deployments affected his back. The Veteran also asserted that ill-fitting service footwear and standing in formations on hard surfaces and close order drill over a period of years impacted his back. A remand is warranted for an opinion which considers the full impact of the Veteran's military duties upon his back condition. The February 2020 VA examiner also opined that it was less likely than not that the claimed low back condition (less than 50 percent probability) was due to or incurred by the bilateral foot, and/or bilateral heel disabilities. The examiner concluded that arthrosis was a degenerative process of the spine; it was not possible without mere speculation to discern if the arthrosis was aggravated by the Veteran's time in service, and his chronic feet condition as there was no true baseline noted in the records. The VA examiner did not provide a sufficient rationale for this conclusion regarding secondary service connection. This must be addressed in the addendum opinion. Also, the examiner's opinion was speculative. A remand is warranted for a new VA addendum opinion that fully addresses these matters. The matters are REMANDED for the following action: 1. Obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran's back disabilities. If an opinion cannot be rendered without an examination, then a VA examination should be scheduled and conducted. The claims folder, including a copy of this remand, should be reviewed by the examiner. The VA examiner should address the following: (a.) Is it at least as likely as not (probability of at least 50 percent) that the Veteran's lumbar spine disabilities are related to any period of active service? The VA examiner should consider the Veteran's lay statements that carrying heavy combat loads of 70 pounds or more over rough terrain during repeated conditioning hikes, tactical movement, exercises, and deployments affected his back. The Veteran also asserted that ill-fitting service footwear and standing in formations on hard surfaces and close order drill over a period of years impacted his back. The examiner should consider the impact of the Veteran's military duties on his current back conditions. An absence of medical evidence cannot be the sole basis for a negative opinion. (b.) If there is evidence of symptoms for any back condition between the two periods of active service, the examiner should state whether there is clear and unmistakable evidence that the back disability pre-existed the subsequent period of service, and if so, whether there is clear and unmistakable evidence that such pre-existing disorder was not aggravated during such subsequent service. (c.) Is it at least as likely as not (probability of at least 50 percent) that the Veteran's back disability is related to, proximately due to, and/or aggravated by his service-connected bilateral foot disabilities (to include service-connected bilateral plantar fasciitis, right foot hallux valgus, and/or left foot hallux valgus)? All opinions must be supported by a sufficient rationale. If the examiner cannot render an opinion without resorting to mere speculation, a full and complete explanation for why an opinion cannot be rendered should be provided. The examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.