Citation Nr: 1753835 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 08-14 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a lumbar spine disability, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Yuskaitis, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1970 to February 1975. The Veteran died in April 2016, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In August 2015, the Board previously reopened the claim of service-connection for a lumbar spine disability and remanded this matter for additional development. In April 2016, the appellant requested substitution for the claims pending at the time of the Veteran's death. In a July 2017 Supplemental Statement of Case (SSOC), the RO recognized the appellant as a valid substitute claimant. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claims. The appellant asserts that the Veteran's lumbar spine disability was related to his service or, in the alternative, was caused or was aggravated by his service-connected cervical spine disability. The Veteran underwent an in-person VA examination in January 2015. The Veteran was found to have been diagnosed with lumbosacral spine strain in 2003 and degenerative arthritis of the spine in 2015. The January 2015 VA examiner concluded that the Veteran's current low back strain and DJD of the lumbar spine was less likely as not related to the sports injury with fracture of the ribs. The examiner provided that there was no evidence of a low back condition at exit from the service and no evidence of a low back condition related to the fracture of the ribs. Notes available indicate a diagnosis of lumbago in 2010, many years after service. There were no notes available indicating a chronic condition due to the rib fracture. On separation examination in 1975, recurrent back pain refers to injury in 1970 for fractured C5, 6 per the notation from physician on separation examination. The VA examiner also concluded that the low back strain was less likely than not related to the residuals of the C5-6 injury. The VA examiner provided that x-rays on the cervical spine did not indicate significant DJD or findings to cause a low back strain. Consistent with the August 2015 Board remand, the Veteran was provided an addendum VA medical opinion in January 2016 by the January 2015 examiner in order to address the theory of secondary service connection and to specifically address (1) the Veteran's theory that twisting his torso to compensate for neck pain caused or exacerbated his lumbar spine disability; (2) whether the Veteran's neck disability caused the Veteran's lumbar degenerative joint disease; and (3) whether the Veteran's lumbar strain/lumbar degenerative joint disease was aggravated beyond its normal progression as a result of a service-connected disability. A January 2016 VA medical addendum opinion provided that the Veteran's current low back strain and degenerative joint disease was less likely as not related to his cervical spine condition or any other service-connected disability. The VA examiner provided that it would be expected that a lumbar condition would have presented much closer in proximity to the original cervical injury than it did in 2010, more than 35 years after service. There was no evidence that his cervical spine disability resulted in mechanical changes which would result in the lumbar spine disability. The January 2016 VA medical opinion also provided that the lumbar spine disability was less likely than not aggravated by the service-connected cervical spine disability or any other service-connected disability. The VA examiner provided that plain radiographs of the cervical spine in 2007 showed a well aligned cervical spine without degenerative joint disease or loss of height. There was no evidence of previous fracture. These x-ray findings did not support an aggravation by the cervical spine condition to include the lumbar spine. The Veteran's degenerative joint disease of the lumbar spine was likely multifactorial and exacerbated by age and time. Upon review of the evidence of record, the Board finds that the January 2016 VA addendum opinion is inadequate as it relied on a factually inaccurate history regarding the Veteran's low back disability. Specifically, this examination was predicated on the fact that the Veteran was not diagnosed with a lumbar spine disability until 2010, more than 35 years after service. However, a review of the medical evidence of record reveals complaints and treatment for the Veteran's low back pain as early as January 1976. Specifically, the Veteran underwent a VA examination in January 1976 at which time he reported back treatment for 15 days in June and July 1975. The Veteran stated that his lower back aches and sometimes he cannot bend over. The VA examiner recorded that the Veteran injured his lower back in-service in the November 1970 accident. Examination of the lumbar spine revealed right lateral scoliosis. The Veteran could flex only to 80 degrees and then he had pain in his lower back. Straight leg raising test was partial on right side at 45 degrees and negative on left. There was no atrophy or sensory loss, and reflexes were normal. On the diagnosis section it listed history of injury to cervical spine and lumbar spine. As the VA examiner relied on a factually inaccurate medical history in rendering the VA medical opinions, the Board finds that this medical opinion is inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). Moreover, the VA examiner was to consider the Veteran's theory that twisting his torso to compensate for neck pain caused or exacerbated his lumbar spine disability. The examiner failed to engage with the Veteran's contentions concerning the originations of his lumbar spine disabilities. A full discussion of the Veteran's lay evidence and beliefs concerning his disability is part and parcel of an adequate examination, as lay evidence can be dispositive regardless of the lack of contemporaneous medical evidence. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Buchanan v. Nicholson, 451 F.3rd, 1331, 1336 (holding that lay evidence can be dispositive regardless of the lack of contemporaneous medical evidence). Accordingly, as the appellant has not yet been provided a VA opinion that adequately addresses the issue presented, to include a fully explained rationale, the Board finds that additional remand is necessary in order to afford the appellant an adequate opinion. Barr v. Nicholson, 21 Vet. App. 303 (Fed. Cir. 2007); Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following actions: 1. Forward the claims file to an appropriate VA medical examiner to obtain a medical opinion regarding the nature and etiology of any lumbar spine disability. The examiner is requested to review the claims folder, to include this REMAND. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. In providing the below opinions, the examiner is requested to reconcile the January 1976, June 2002, January 2015 and January 2016 opinions. The examiner should note the Board's findings as set forth above regarding the January 2016 opinion. The examiner is requested to provide a medical opinion on the following: (a) Clearly identify all diagnosed lumbar spine disabilities. (b) For each diagnosed lumbar spine disability, is it as least as likely as not (i.e., there is at least a 50 percent probability or greater) that the Veteran's lumbar spine disability (i) had its onset during service or (ii) within the initial year after separation, or (iii) is otherwise related to his active service? (c) For each diagnosed lumbar spine disability, is it at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran's lumbar spine disability is caused or aggravated (permanently worsened beyond the natural progress of the disorder) by the Veteran's service-connected degenerative disc disease/degenerative joint disease of the cervical spine? *In providing this opinion, the examiner must consider the Veteran's statements regarding onset and symptomatology. The examiner's attention is drawn to the Veteran's January 2015 theory that twisting his torso to compensate for neck pain had caused or exacerbated a lumbar spine disability. If the examiner rejects the lay reports, he or she must so state and explain why. An absence of contemporaneous medical treatment, standing alone, cannot be the basis for rejecting the lay reports. *The examiner should set forth all examination findings, along with the complete rationale for all conclusions reached. 2. Review the examination report(s) to ensure that it is in complete compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Then, readjudicate the claim. If the decision is adverse to the appellant, issue a supplemental statement of the case (SSOC) and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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. §§ 5109B, 7112 (2012). _________________________________________________ LESLEY A. REIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).