Citation Nr: 22017914 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 17-16 692A DATE: March 27, 2022 REMANDED The issue of service connection for a nerve condition of the left lower extremity, to include as secondary to a left foot disability is remanded. The issue of service connection for a lower back disability, to include as secondary to a left foot disability is remanded. REASONS FOR REMAND The Veteran had active duty in the United States Army from July 1968 to April 1970. These matters come before the Board of Veterans' Appeals (Board) from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a Notice of Disagreement (NOD) in February 2013 and a Statement of the Case (SOC) was issued in February 2017. The Veteran perfected an appeal by submitting a timely VA Form 9 in April 2017. The issues were previously before the Board. In August 2021, the Board remanded the appeal to the RO for additional development. The Board found that the Veteran's asserted symptoms supported the inference of a nerve condition of the left lower extremity during the rating period on appeal. Then, the Board directed the RO to obtain a medical opinion on whether it is at least as likely as not that the Veteran's lower back disability has been aggravated by his left foot disability and whether his nerve condition of the lower left extremity, if diagnosed, was proximately due to or the result of the Veteran's left foot disability. In September and November of 2021, the RO obtained a medical opinion on the respective etiologies of the Veteran's lower back disability and nerve condition of the lower left extremity. Thus, the Board finds that the RO substantially complied with the remand directives and no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). 1. Service connection for a lower back disability, to include as secondary to a left foot disability The Veteran contends that his lower back disability was incurred in service. In the alternative, the Veteran contends that his lower back disability was proximately due to, or aggravated by, his left foot disability (amputation of the left great toe) as he was told that he compensated for the pain in the left foot by changing his gait. After a review of the evidence, the Board finds that additional evidentiary development is necessary. In August 2021, the Board found that VA medical opinions prior to its decision were inadequate as they did not address whether the Veteran's left foot disability aggravated his lower back disability and because they failed to discuss evidence of back pain in the Veteran's service treatment records. As discussed above, the Board directed the RO to obtain a new medical opinion. In September 2021, the Veteran was afforded a new VA examination for his lower back disability. The examiner opined that, while the Veteran had an altered gait, there was no causal relationship between the Veteran's altered gait and his degenerative disc of his lumbar spine, citing prior VA medical opinions of record. The examiner did not explain why or how an altered gait could not cause or aggravate the Veteran's lower back disability, effectively failing to discuss the Veteran's contention. In November 2021, the examiner added that the Veteran's degenerative disc disease of the lumbar spine was more likely related to the natural aging process and not aggravated beyond normal or natural progression. As rationale, the examiner noted that the Veteran's diagnosis of degenerative disc disease was 34 years after military service and amputation and that the Veteran's work history as a computer engineer made it unlikely that the Veteran sustained repetitive injury to the spine due to his altered gait. The examiner also cited prior treatment records and prior VA examinations that also found that the Veteran's back disability was more likely related to age related progression, and that the Veteran was more likely genetically predisposed to scoliosis. The examiner did not explain the significance of scoliosis in the Veteran's case. Regarding direct service connection, the examiner opined that the Veteran's back disability was less likely than not incurred in or caused by service because "there is no objective evidence of any permanent or residual or chronic disability related to the back." Outside of citing the lack of contemporaneous medical evidence, the examiner did not offer any other rationale for her opinion and did not explain why the Veteran's report of back pain was dismissed as temporary and not indicative of "permanent residual or chronic disability." Thus, the Board finds that the September and November 2021 VA examinations and corresponding medical opinions to be inadequate. As discussed above, on direct service connection, the November 2021 VA examiner's opinion relied solely on the absence of contemporaneous medical evidence and is also conclusory without supporting rationale as to why the Veteran's complaints were not suggestive of an underlying disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006) (holding that the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning"); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). On secondary service connection, the September 2021 VA medical opinion is also conclusory, not explaining why the Veteran's altered gait could not have caused or aggravated his degenerative disc disease. See Moore v. Derwinski, 1 Vet. App. 401, 404 (1991) ("the Board must include in its decisions 'the precise basis for that decision ... [and] the Board's response to the various arguments advanced by the claimant'" (alterations in original) (quoting Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990)). Likewise, the November 2021 VA medical opinion is also inadequate as the examiner does not offer any rationale supporting her opinion that the Veteran's degenerative disc disease is due to aging and/or genetic predisposition. There is no discussion of a baseline nor the Veteran's family history that could support her opinion. Moreover, she stated that the Veteran's employment after service was unlikely to have aggravated the Veteran's disability as it "made it unlikely that the Veteran sustained repetitive injury to the spine due to his altered gait." The Board finds her rationale to be ambiguous if not contradictory to her prior opinion as she effectively suggests that "sustained repetitive injury to the spine due to his altered gait" could aggravate degenerative disc disease of the spine, implying a causative relationship. The Board also observes that, while the February 2012 VA examiner diagnosed the Veteran as having scoliosis, other medical evidence of record shows that the Veteran did not have scoliosis before or after the February 2012 VA examination as shown in the June 2008 and December 2018 imaging studies. Moreover, a review of the medical evidence of record shows that there are contrary and conflicting reports regarding the normality of the Veteran's gait and whether the Veteran has scoliosis. As there are no adequate VA examinations of record, the claim must be remanded. 2. Service connection for a nerve condition of the left lower extremity, to include as secondary to a left foot disability In September 2021, a VA examiner opined that the Veteran's nerve condition of the left lower extremity was "related to his back, as per EMG and medical evidence." In the addendum November 2021 medical opinion, the examiner opined that private medical records from January 2019 stating that the Veteran's left lower extremity did not appear to be related to his back did not conflict with her opinion as the private opinion was "based on subjective information only." Thus, the claim of entitlement to service connection for nerve condition of the left lower extremity is inextricably intertwined with the remanded claim of service connection for lower back disability as the decision will affect the claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Thus, consideration of the appeal regarding entitlement to service connection for nerve condition of the left lower extremity will be remanded. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by a VA clinician who did not previously examine the Veteran to determine the nature and etiology of the Veteran's lower back disability. The examiner should review the virtual file, including a copy of this decision. The examiner is to address: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's lower back disability manifested during or is otherwise caused by the Veteran's period of active service. b. Whether it is at least as likely as not (50 percent or greater probability) the Veteran's lower back disability was caused or aggravated by service or a service-connected disability, to include his left foot disability (amputation of the left great toe). The examiner is advised that aggravation means any increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the clinician should attempt to quantify the degree of additional disability resulting from the aggravation. A rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. Specifically, the examiner must discuss the conflicting reports of normal and abnormal gait in the treatment records, conflicting findings of scoliosis in the imaging studies, and whether, in the Veteran's specific case, his gait caused or aggravated his lower back disability. If the examiner finds that there is an alternate cause for the Veteran's lower back disability, such as age or genetic predisposition, the examiner must identify the alternate cause and support it with adequate rationale. If an opinion cannot be given without resorting to speculation, the clinician should explain why and 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), the record (additional facts are required), or the clinician (does not have the knowledge or training). 2. Schedule the Veteran for an examination by a VA clinician who did not previously examine the Veteran to determine the nature and etiology of the Veteran's nerve condition of the left lower extremity. The examiner should review the virtual file, including a copy of this decision. The examiner is to address whether it is at least as likely as not (50 percent or greater probability) that the Veteran's nerve condition of the left lower extremity was caused or aggravated by service or a service-connected disability. The examiner is advised that aggravation means any increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the clinician should attempt to quantify the degree of additional disability resulting from the aggravation. A rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the clinician should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge, the record, or the clinician. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H.S. Yun, 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.