Citation Nr: 1733136 Decision Date: 08/15/17 Archive Date: 08/23/17 DOCKET NO. 13-16 119 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a lumbar spine disability, to include degenerative disc disease and arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1969 to May 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Veteran was afforded a hearing before the undersigned Veteran Law Judge in December 2013. A transcript of the hearing has been associated with the claims file. The appeal was remanded in April 2015 for further development. The Veteran's claim of service connection for an acquired psychiatric disorder is moot as he was granted service connection, during the pendency of the appeal, for schizoid personality disorder with an evaluation of 30 percent effective November 2009, and an evaluation of 100 percent effective August 2016. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, the claim must be remanded again for further development. In its April 2015 remand, the Board directed the RO to take several actions, which included providing "an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that the arthritis manifested in service or within the first service year, or is otherwise etiologically related to service." The Board finds that the RO failed to comply with the Board's remand directives 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"). The Board finds that VA has not met its duty to assist the Veteran in obtaining an adequate examination for the purposes of rendering a decision. See 38 C.F.R. § 4.2 (2016); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran was afforded a VA examination of the thoracolumbar spine in June 2016. Following the examination, the RO requested the examiner to provide an addendum opinion, in pertinent part to address the Veteran's arthritis. In the August 2016 addendum opinion, the examiner referred to the diagnostic findings which were positive for arthritis, but failed to provide an opinion as to the etiology of the arthritis as directed in the April 2015 remand. In addition, although the June 2016 VA examiner did address degenerative disc disease, the Board finds the examination inadequate as the examiner failed to provide a thorough rationale for the examiner's negative nexus opinion on the Veteran's degenerative disc disease. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); 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"). In June 2016, the examiner concisely stated a "spinal tap has no association with degenerative disc disease" without providing any additional explanation to the rationale. In August 2016, the examiner added that low back pain with radiation "does not cause degenerative disc disease. As per NIH, 'it occurs when the usually rubbery discs lose integrity as [a] normal process of aging.'" The Veteran has maintained throughout the record that his back pain has been consistent since he underwent a spinal tap in April 1970. The examiner did not provide an adequate rationale addressing the Veteran's contentions. Thus, the examination is inadequate to adjudicate the Veteran's claim for the degenerative disc disease condition. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding treatment records with the help of the Veteran from the VA or any other entities the Veteran identifies. 2. The Veteran must be afforded a new VA orthopedic examination, with a qualified medical professional, to determine the nature and etiology of a lumbar spine disability. Provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the lumbar spine disorder is etiologically related to service. Provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the arthritis manifested in service or within the first post-service year, or is otherwise etiologically related to service. The examiner should specifically consider: a. The December 1969 service treatment record showing complaints of low back pain with radiation. b. The Veteran's reports that he has had back pain since onset in service in basic training and since an in-service spinal tap. See e.g., December 2013 Board hearing transcript at p. 9, 11; January 2004 Veteran statement. c. The lay statements dated in July 2004 attesting to observing the Veteran's complaints of back pain since service. A complete and thorough rationale for any opinions expressed should be provided in a legible report. In doing so, the examiner should reconcile any contrary medical evidence of record; this includes any relevant private medical opinions. Please note that a lack of medical documentation in service alone is not sufficient to render lay evidence not credible. 3. After the requested actions are completed, the report should be reviewed to ensure complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the reviewing personnel. 4. After undertaking any other development deemed appropriate, the RO will readjudicate the issue on appeal. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and arguments on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).