Citation Nr: 18144568 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 13-15 118 DATE: October 24, 2018 REMANDED Entitlement to service connection for a low back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1983 to February 1984. The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2015. A transcript of that hearing is associated with the claims file. Entitlement to service connection for a low back disorder is remanded. In compliance with the Board’s September 2017 Remand, the RO obtained a new medical opinion addressing the etiology of the Veteran’s low back disorder. The July 2018 VA examiner opined that the Veteran’s current low back symptoms stem from a developmental defect which pre-existed military service and that there was no superimposed injury incurred during service. In an October 2018 brief, the Veteran’s representative argues that the July 2018 VA opinion is inadequate, and that a new VA opinion should be obtained. The Board agrees. The Veteran’s September 1983 service entrance examination shows that his spine was normal on examination. In a report of medical history, completed at that time, the Veteran denied a history of recurrent back pain. Inpatient hospital records from January 1984 reflect that the Veteran reported back pain for 24 hours. He stated that he sprained his back while walking through the bay. Records dated in January 1984 note the Veteran’s reports of a history of back problems described as between three to six episodes of low back pain or muscle spasms from “tension” which kept him out of work. The official radiographic interpretation of a January 1984 X-ray of the lumbar spine shows that it revealed slight scoliosis of the lumbar spine to the left, and was otherwise normal. A second interpretation of the X-rays, also dated in January 1984, notes that the X-rays showed a moderate compression fracture of L1. It is unclear from the service treatment note who authored the secondary interpretation of the January 1984 X-rays, or their qualifications to do so. The July 2018 VA examiner’s opinion relies heavily on the January 1984 secondary interpretation of the X-rays of the lumbar spine in support of the opinion. However, it is unclear who authored the January 1984 secondary interpretation of the lumbar X-rays in the service treatment note, and consequently, its reliability. Additionally, this interpretation of the January 1984 X-rays is not reported anywhere else in the service treatment records. The July 2018 VA examiner also relied on November 1996 lumbar X-rays which showed slight anterior wedging of the mid-lower thoracic vertebral bodies and L-1, which “appears to be due to old juvenile epiphysitis.” However, November 2012 X-rays of the lumbar spine note the mild compression deformity of the L-1 vertebral body, but state that the deformity was “age indeterminate” and that “[a]n acute fracture cannot be excluded.” Thus, while the July 2018 VA examiner relied on the November 1996 X-rays to support the opinion, the examiner did not address the contradictory evidence in the claims file which could not determine an approximate date for the mild compression deformity and could not rule out an acute fracture. The examiner also did not discuss the June 2014 VA opinion which concluded that there was “no objective evidence to support the veteran had any non-traumatic cause of compression fractures or deformities” and that there was not clear and unmistakable evidence that the Veteran’s low back disorder pre-existed military service. This failure to address all of the pertinent evidence in the claims file renders the examiner’s opinion inadequate. The matter is REMANDED for the following action: 1. Provide the Veteran with a new VA examination, conducted by an orthopedic physician, to determine the etiology of his current low back disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner is asked to provide the following opinions: (a.) Does the record demonstrate clearly and unmistakably that the Veteran had a developmental defect of the lumbar spine prior to his entrance into active duty service? If so, please state the diagnosis of the developmental defect, and also state whether the Veteran’s current lumbar spine disorder is a manifestation of that developmental defect. i. If the answer to question (a) above is yes, does the record demonstrate clearly and unmistakably that the developmental defect was not subjected to a superimposed disease or injury during active service? (b.) If the answer to question (a) above is no, is it clear and unmistakable (undebatable) that the Veteran’s low back disorder pre-existed his active duty service? (c.) If the answer to question (b) above is yes, is it clear and unmistakable (undebatable) that the pre-existing low back disorder was NOT aggravated during the Veteran’s military service? (d.) If the answer to question (b) above is no, is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s low back disorder manifested during active duty service or is otherwise related to an event, injury, or disease incurred during active duty service? A complete rationale for all opinions must be provided. The examiner is advised that the Veteran is competent to report symptoms capable of lay observation. 2. After the requested medical opinion has been provided, the RO must review the medical report to ensure that it is in complete compliance with the directives of this remand. Any deficient medical report must be returned to the examiner, and the RO must implement corrective procedures at once. 3. The RO must then re-adjudicate the Veteran’s claim on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Katz, Counsel