Citation Nr: 22017720 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 14-15 399 DATE: March 26, 2022 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a left leg disability is remanded. Entitlement to a rating of total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) in the United States Army from January 1982 to September 1982 and March 1985 to July 1986. The Veteran had ACDUTRA service with the United States Air Force from June 1991 to February 1992. He also had service in both the United States Army Reserves and United States Air Force Reserves. This case comes on appeal of November 2011 and December 2013 rating decisions. These matters were previously before the Board in February 2018. At that time, the Board remanded for further development, to include associating the Veteran's full service records with the file, as well as obtaining new VA examinations. Notably, in the February 2018 decision, the Board acknowledged that the Veteran had requested a hearing when perfecting his appeal, but had not shown for his scheduled hearing, therefore the hearing request was deemed satisfied. Following the Board's February 2018 remand, in October 2020, VA sent the Veteran a letter erroneously implying that the Veteran had a pending request for a Travel Board hearing and encouraging the Veteran to instead schedule a virtual tele-hearing. Later that month, VA then issued a memorandum noting that a hearing had already been conducted on the appeal. Although no hearing was conducted on this appeal following the February 2018 remand, there is no indication that the Veteran requested one. Indeed, the Veteran's representative presented written testimony on this case in response to VA's January 2020 supplemental statement of the case. Therefore, any error in this notice is not considered to be detrimental to the Veteran. 1. Entitlement to service connection for a lumbar spine disability is remanded. The evidence demonstrates that the Veteran has a current lumbar spine disability, diagnosed as degenerative disc disease and spinal stenosis. The Veteran has undergone lumbar laminectomy surgery in treatment of this disability. The Veteran has presented two theories of entitlement regarding his lumbar spine disability. First, the Veteran contends that service connection is warranted on a direct basis. The Veteran has testified that he incurred an injury during his second period of ACDUTRA service when he fell from a transport truck. Second, the Veteran contends that service connection is warranted on a secondary basis as his lumbar spine disability was caused or aggravated by his service-connected foot conditions, documented as bilateral pes planus with bilateral plantar fasciitis, and Achilles tendonitis. The Veteran underwent a July 2011 VA examination to address his lumbar spine disability. However, as the Board noted in its July 2018 decision, the examiner at that time relied on the lack of treatment in service to form the basis of his opinion and did not discuss the Veteran's statements regarding onset. This, in addition to the fact that the examiner did not have the Veteran's full service records available for review, rendered the examination inadequate. In December 2019, the Veteran then underwent a new VA examination of his lumbar spine disability. At that time, the examiner opined that it was less likely than not that the Veteran's lumbar spine disability was caused by or incurred in service, or that it was secondary to the service-connected bilateral foot disability. In a January 2022 written communication, the Veteran's representative challenged the adequacy of the December 2019 examination. Whenever VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). An adequate medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Here, the Board agrees that the December 2019 examination was inadequate as it pertains to the question of secondary service connection. First, the examiner stated that pes planus does not cause the type of severe spinal stenosis the Veteran currently has, but did not provide a reasoned medical explanation as to why that is the case. Moreover, the examiner did not address whether the documented disabilities of plantar fasciitis and Achilles tendonitis were causally related to the lumbar spine disability. Additionally, the examiner did not address whether the Veteran's service-connected disabilities aggravated the lumbar spine disability, which is a necessary consideration under 38 C.F.R. § 3.310. Furthermore, an April 2014 private examiner, Dr. M.M., opined that the Veteran's lumbar spine disability was caused by pes planus. Dr. M.M.'s only explanation as to why the two were related was that the Veteran's lumbar spine disability had progressed gradually. This does not represent adequate medical rationale. Nevertheless, the December 2019 examiner did not address this favorable evidence regarding the theory of causation or aggravation. The Veteran's representative also argues that the December 2019 examination was inadequate because the examiner impermissibly questioned the Veteran's credibility in concluding that the Veteran's lumbar spine disability was not directly caused by service. However, the mere fact that an examiner may question a Veteran's credibility, or find significance in an inconsistent report of history in answering the medical question before him or herin and of itselfdoes not render the underlying medical opinion inadequate. Indeed, while the Board is prohibited from outsourcing its own credibility determination (for the purposes of adjudicating a VA claim for disability benefits) to a medical examiner, the examiner is not prohibited from reviewing and evaluating the facts he or she finds pertinent to the medical question presentedfacts which in this case, appeared to include the Veteran's prior inconsistent reports of medical and personal history. In this case, the Veteran's credibility has not yet been assessed by the Board. The December 2019 medical opinion is but one factor out of many that may be considered by the Board in evaluating whether the Veteran's statements of medical history and his stipulations to VA are in fact credible. In this connection, neither the Veteran nor his attorney have provided argument or explanation as to what significance, if any, the Board should place on the fact that there are inconsistent reports of medical and personal history shown in the record. Indeed the Veteran reports that in either March 1986 or June 1986, he fell off a transport truck, injuring his feet, legs, hips, and back. He stated that this injury resulted in his being discharged from the Army Reserves and that he was barely able to walk for three years after his discharge, and that his back pain remained from that point on, worsening over time. However, review of the service records does not show any care specific to a back injury at the time, and personnel records do not show a medical discharge from the Army Reserves. It appears the Veteran served for several more years as an Air Force Reservist. He specifically denied a history of back pain on Reports of Medical History dated in September 1990 and July 1995. A May 30, 2003 chiropractor record indicated back pain of insidious onset, progressive over the prior 3-4 weeks, with no history of trauma. On a September 30, 2003 Intake Questionnaire the Veteran noted onset of back pain after a post-service personal assault. In subsequent medical reports, the Veteran indicated to his physician that his back pain started in March 2003. See a March 7, 2005 report from Dr. G.R.M. On remand, the Veteran and his attorney should be invited to provide a written response addressing these apparent inconsistencies, so as to assist the Board in assessing the credibility of the Veteran's statements in support of his claim. The Board adds that insofar as the Veteran's attorney asserts that the December 2019 examiner failed to address a June 1986 service treatment record documenting a "rollover" as evidence of the claimed transport truck incident, this treatment record is for evaluation of the Veteran's orthotic inserts. The reference to a "rollover" is describing the condition the orthotics were designed to treat. As such, the December 2019 examiner's failure to discuss this record does not trigger a duty to obtain a new opinion addressing direct service connection at this time. In addition, while the Veteran's attorney attached significance to the fact that the December 2019 opinion did not consider that the Veteran sought orthopedic care as early as 1997, the Board notes that there is no indication in the medical records that such care was for the back itself, and the Veteran and his attorney have not so stipulated. As noted above, a favorable nexus opinion from Dr. M.M. is of record; however, the opinion is conclusory in nature, and does not contain sufficient medical explanation or rationale to support the award of service connection on either a direct or secondary basis at this time. Accordingly, on remand, a new medical opinion should be obtained to address whether the Veteran's service-connected bilateral foot conditions at least as likely as not caused or aggravated the Veteran's current lumbar spine disability. In doing so, the examiner should address all documented foot disabilities. 2. Entitlement to service connection for a left leg disability is remanded. 3. Entitlement to a rating of total disability based on individual unemployability (TDIU) is remanded. The evidence demonstrates that the Veteran's claimed left leg disability is neurological and causally related to the Veteran's lumbar spine disability. Moreover, the Veteran's claim for a TDIU is primarily related to an inability to work due to his lumbar spine disability. Therefore, these issues are inextricably intertwined and must be remanded as well. The matters are REMANDED for the following action: 1. Send the Veteran and his attorney a letter inviting them to submit an additional statement specifically addressing what appear to be prior inconsistent reports of medical and personal history pertaining to the nature of any in-service back injury, and the progression of relevant back symptomatology during and since service. 2. Obtain a medical opinion from an appropriate examiner addressing the Veteran's lumbar spine disability. The examiner should review the claims file, and the opinion should include discussion of the Veteran's documented history and assertions. If the examiner determines he or she cannot provide an opinion without examination of the Veteran, such examination should be arranged. The examiner should then render an opinion, as to whether it is at least as likely as not (i.e., there is approximately a 50 percent or greater probability) that the Veteran's lumbar spine disability was caused or aggravated by his service-connected bilateral foot disabilities, which include pes planus with bilateral plantar fasciitis and Achilles tendonitis. The examiner should set forth all findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. 2. Once the above development has been achieved, as well as any other development deemed necessary thereafter, readjudicate the appeal. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Giaquinto, 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.