Citation Nr: 23020411 Decision Date: 04/03/23 Archive Date: 04/03/23 DOCKET NO. 18-54 073 DATE: April 3, 2023 REMANDED Service connection for a lumbar spine (back) disability is remanded. Service connection for a left hip disability is remanded. Service connection for a right hip disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1955 to May 1958. 1. Service connection for a lumbar spine disability is remanded. 2. Service connection for a left hip disability is remanded. 3. Service connection for a right hip disability is remanded. In its April 2019 decision, the Board noted the Veteran's report at the October 2016 VA examination of lumbar spine pain for the past 40 years and bilateral hip pain for the past 10 years. The Board found that the October 2016 VA examiner did not address the Veteran's assertions, and also did not provide medical opinions regarding secondary service connection for either the lumbar spine or the hips - specifically, whether the Veteran's service-connected varicose vein disabilities (each rated 60 percent disabling) aggravated his lumbar spine and hip disabilities. Following the April 2019 Board remand, the Veteran was afforded VA examinations and medical opinions in October 2020. However, the April 2021 Board remand pointed out that the VA examiner did not provide a secondary nexus opinion regarding the service connection claim for the hips, and did not provide an opinion regarding whether the service-connected varicose veins aggravated the Veteran's lumbar spine disability. The Board found that another remand was necessary to obtain the requested medical opinions. The Veteran was afforded VA examinations in January 2023 for the lumbar spine and for the hips. The examiner explained that a review of medical literature, to include journals and studies, showed no causative effect of varicose veins causing lumbar spine or hip disabilities. However, the examiner did not provide an opinion regarding whether the service-connected varicose veins aggravated the lumbar spine disability. Regarding whether the service-connected varicose veins aggravated the hip disabilities, the examiner appears to analyze whether there was an in-service aggravation. Here, the Board finds that there has not been substantial compliance with the Board's April 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the examiner did not provide the requested medical opinion regarding whether the service-connected varicose veins aggravated his lumbar spine disability; and appeared to use the wrong aggravation standard when discussing the hip disabilities. The examiner stated that there was no baseline to establish a baseline for the hip disabilities because the service treatment records (STRs) did not contain any evidence of hip disabilities. However, the correct analysis should focus on whether the service-connected varicose veins disability aggravated the lumbar spine or the hips, specifically focusing on the period on appeal. Further, the Board also notes that the VA examiners of record have provided opinions regarding whether the service-connected varicose veins have caused or aggravated the lumbar spine disability and the hip disability. They all reported that there is no medical literature supporting that those issues are specifically related to varicose veins. This Board decision points out that the opinions of record have focused narrowly on whether varicose veins, directly, could cause a lumbar spine disability or a bilateral hip disability. However, the Board does not believe that the requested opinions meant to ask such a narrow question. As noted, the Veteran's bilateral lower extremity varicose vein disability is significant, as these disabilities are assigned separate 60 percent ratings for each lower extremity. A review of the latest VA examination report for the varicose veins disabilities shows that he reported always having pain in his legs, and the examiner noted that the Veteran had aching in the legs after prolonged standing and walking. Given the foregoing, the Board finds that the necessary medical opinions have not yet been provided, and that the Veteran should be furnished medical opinions that comply with the Board's prior remand directives and that explore all reasonable theories to entitlement. The matters are REMANDED for the following action: 1. Obtain addendum opinions to address the nature and etiology of the Veteran's lumbar spine and bilateral hip disabilities. The examiner should provide the following opinions: a) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any diagnosed lumbar spine disability and/or bilateral hip disabilities were caused by a service-connected disability, to include the Veteran's bilateral lower extremity varicose veins disability. b) Is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any diagnosed lumbar spine disability and/or the bilateral hip disability were aggravated by (the concept of aggravation must be specifically addressed) by a service-connected disability, to include the Veteran's right and left lower extremity varicose veins disabilities. Why or why not? In providing the aggravation opinion the examiner should specifically consider and discuss the Court of Appeals for Veterans Claims in Ward v. Wilkie, 31 Vet. App. 233 (2019) (holding that aggravation need not be permanent in nature). There is no need for another opinion regarding whether the Veteran's varicose veins disabilities have directly caused the lumbar spine or hip disabilities. Instead, the examiner is asked to provide an opinion regarding whether the Veteran's bilateral lower extremity varicose veins disability has caused an altered gait. If the varicose veins disability has caused an altered gait, did that altered gait cause, either on a direct basis or on the basis of aggravation, the Veteran's lumbar spine and/or hip disabilities. (Continued on the next page) ? If aggravation is found, the examiner should identify the baseline level of severity of the claimed disabilities by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the lumbar spine and/or hip disabilities. The Board directs the examiner's attention to the medical opinions provided by the January 2023 VA examiner for the hip disabilities. The examiner analyzed whether there was an in-service aggravation. However, the correct analysis should focus on whether the service-connected varicose veins disability aggravated, or currently aggravates, the lumbar spine or the hips during the period on appeal. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.