Citation Nr: 18154135
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 10-36 749
DATE:	November 29, 2018
REMANDED
Entitlement to service connection for degenerative disc disease of the lumbar spine (claimed as a lower back condition) is remanded.
Entitlement to service connection for a bilateral foot disability, diagnosed as bilateral pes planus, is remanded.
REASONS FOR REMAND
The Veteran served on active duty from June 1980 to June 1986. 
These matters come before the Board of Veterans’ Appeals (Board) on appeal from January and June 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO).
1. Entitlement to service connection for degenerative disc disease of the lumbar spine (claimed as a lower back condition) is remanded.
In the January 2014 remand, the Board directed a VA examiner to examine the Veteran and opine whether it is at least as likely as not that his spinal disability was directly related to service or secondarily related to his service-connected right or left knee disabilities.  In a May 2016 medical opinion, the VA examiner opined that the Veteran’s spinal disability was not directly related to service.  She further opined that the Veteran’s spinal disability was not caused by his left knee disability.  She did not opine whether the Veteran’s spinal disability was aggravated by his left knee disability or caused or aggravated by his service-connected right knee disability.  The Agency of Original Jurisdiction (AOJ) failed to comply with the Board’s remand in this regard. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Board remand “confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders”).  Therefore, on a remand, the RO should obtain an addendum opinion from the May 2016 examiner which addresses all theories of entitlement. 
2. Entitlement to service connection for a bilateral foot disability, diagnosed as bilateral pes planus, is remanded.
In its January 2014 remand, the Board requested a medical opinion regarding whether or not the Veteran’s bilateral foot disability preexisted service and if so, whether it was clear and unmistakable that it increased in severity during service.  If there was no evidence of a preexisting bilateral foot disability, the Board requested an opinion as to whether it is at least as likely as not that the Veteran’s foot disability was related to service.  In a May 2016 opinion, the examiner opined that the Veteran’s bilateral foot disability clearly and unmistakably preexisted service and was clearly and unmistakably not aggravated beyond its natural progression.  However, having carefully reviewed the record, the Board finds that the Veteran’s entrance examination does not list a bilateral foot disability.  See June 1980 entrance examination.  Therefore, the presumption of soundness applies.  The May 2016 examiner does not explain how she came to the conclusion that the Veteran’s foot disability preexisted service.  The Agency of Original Jurisdiction (AOJ) failed to comply with the Board’s remand in this regard. See Stegall, supra. Therefore, the Board finds that a remand is necessary to obtain an addendum opinion which properly addresses the issue of whether the Veteran’s bilateral foot disability preexisted service.  
The matters are REMANDED for the following action:
1. Obtain an addendum opinion from the May 2016 examiner (or appropriate medical professional) concerning the Veteran’s claim for a spinal disability.  The electronic claims file, including this remand, must be made available to, and reviewed by, the examiner.  The examiner is requested to address the following:
(a) Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s spinal disability was caused or aggravated by his service-connected left or right knee disabilities.
(b) If aggravation is found, provide the baseline manifestations prior to aggravation and the increased manifestations due to the service-connected left or right knee disabilities. 
The Board is returning the matter for another medical opinion since the May 2016 examiner only addressed secondary service-connection (causation basis only) regarding the Veteran’s left knee disability and did not address secondary service-connection, based on aggravation, for the left or right knee disabilities, or causation, based on the Veteran’s right knee disability.
Please provide a complete explanation for all opinions.
2. Obtain an addendum opinion from the May 2016 examiner (or appropriate medical professional) concerning the Veteran’s claim for a bilateral foot disability. The electronic claims file, including this remand, must be made available to, and reviewed by, the examiner.  The examiner is requested to address the following:
(a) Opine as to whether it is clear and unmistakable (obvious, manifest, and undebatable) that the Veteran’s bilateral foot disability pre-existed active service. 
(b) If so, the examiner must state whether it is clear and unmistakable (obvious, manifest, and undebatable) that a pre-existing bilateral foot disability WAS NOT aggravated (i.e., permanently worsened) during service; or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to the natural progress. 
(c) If it did not preexist service, the examiner must opine as to whether any current bilateral foot disability at least as likely as not (a probability of 50 percent or greater) began in or is related to service. 
The Board is returning the matter for another medical opinion since the May 2016 examiner stated that the Veteran’s bilateral foot disability preexisted service but did not explain the reasons for her conclusion. Since no bilateral foot disability was noted on the Veteran’s entrance examination, the legal standard for deciding whether the foot disability preexisted service is heightened. 
Please provide a complete explanation for all opinions.
3. Then, after conducting any other development deemed necessary, readjudicate the Veteran’s claim. If any benefits sought on appeal remain denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board.
 
Michael Pappas
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	L. Baskerville

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.