Citation Nr: 1808245 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 11-20 089 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a back disorder, to include spondylosis, spondylolisthesis, and spondylolysis. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Wulff, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from March 30, 1970, to April 20, 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2016. A transcript of that proceeding is associated with the record. In June 2016, the Board remanded the case for further development. The case has since been returned to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the delay, a remand is necessary to obtain a fully adequate VA medical opinion. The Veteran's March 1970 enlistment examination did not note any back abnormalities. As such, the Veteran is presumed to have been in sound condition at entry into service. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2017). In order to rebut this presumption, it must be shown with clear and unmistakable evidence that the disorder preexisted service and was not aggravated by service. Id. The Veteran was afforded a VA examination in December 2016 during which the examiner diagnosed him with degenerative arthritis of the spine. In rendering his opinion, the examiner addressed several back disorders, to include spondylosis, spondylolisthesis, and spondylolysis. The December 2016 examiner opined that the Veteran's back disorder was less likely than not caused by or a result of service. He further opined that the back disorder clearly and unmistakably was not aggravated beyond its natural progression by an in-service event, injury, or illness. With regard to spondylosis, the examiner stated that x-ray and magnetic resonance imaging (MRI) findings provided a diagnosis of spondylosis in the 2000s. He explained that spondylosis is an x-ray finding that is seen with aging. With regard to spondylolisthesis, the examiner opined that the condition was incurred as a result of a post-service injury that the Veteran sustained falling from a tree in 1974. In so doing, the examiner stated that the disorder was not caused by the Veteran's service because the disorder is diagnosed by x-ray and his in-service x-rays did not document spondylolisthesis. In addition, the examiner noted that an August 2007 neurosurgery record indicated that the Veteran's back pain was due to his spondylosis with spondylolisthesis. The examiner explained that the finding meant that the Veteran's back disorder was related to arthritis from his back (from aging) and spondylolisthesis from slippage incurred due to falling from a tree. With respect to spondylolysis, the examiner opined that the disorder was less likely than not caused by or a result of service. He further opined that the disorder clearly and unmistakably was not aggravated beyond its natural progression by an in-service event, injury, or illness. Rather, the examiner stated that the Veteran had preexisting spondylolysis that was likely due to an injury sustained from a fall prior to service in 1968. He also stated that the Veteran likely did not report his history of a back injury during the March 1970 enlistment examination, or alternatively, the examiner did not document his reported history. In rendering his opinion, the examiner stated that the Veteran's service treatment records clearly documented that the Veteran sustained a pre-service injury to his back. He indicated that the Veteran had back pain since the 1960s and that he was initially diagnosed with spondylolysis based on x-ray findings in April 1970. The examiner also noted that an April 1970 Medical Evaluation Board concluded that the Veteran's spondylolysis, L5-S1, was not incurred in or aggravated by his service. In September 2017, the AOJ requested an addendum medical opinion after obtaining additional service treatment records. However, in the October 2017 VA medical opinion, the examiner merely responded "this was done on December 12, 2016," after each of the Board's remand directives. In light of the foregoing, the Board finds that an additional medical opinion is necessary. In this regard, the examiner's opinion regarding spondylolysis did not address the correct legal standard. Moreover, the examiner provided no supporting rationale for his determination that the Veteran's spondylolysis was not aggravated by service. In particular, he did not address the veteran's reported in-service injury. Furthermore, in rendering his opinion regarding spondylosis and spondylolisthesis, the examiner explained that the Veteran's back disorder was related to arthritis from his back (from aging) and spondylolisthesis from a post-service injury. However, the examiner did not address the Veteran's lay statements regarding the onset and ongoing nature of his back pain. Additionally, the examiner did not fully explain the medical significance of the time gap between the Veteran's service and post-service diagnosis of spondylolisthesis. Therefore, a remand is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall v. West, 11 Vet. App. 268, 271(1998). Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a back disorder that are not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After completing the above development, the AOJ should refer the Veteran's claims file to the December 2016 VA examiner or, if he is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's back disorder. A physical examination is only needed if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should identify all current back disorders, to include specifically indicating whether the Veteran has spondylosis, spondylolysis, spondylolisthesis, and degenerative joint disease. For each diagnosis identified, the examiner should state whether the disorder clearly and unmistakably preexisted the Veteran's active duty service from March 30, 1970, to April 20, 1970. If so, the examiner should state whether there was an increase in the severity of the preexisting back disorder during service and whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. For each diagnosis that did not clearly and unmistakably preexist service, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested in or is otherwise causally or etiologically related to the Veteran's military service, to include any symptomatology therein. In rendering his or her opinion, the examiner should consider the following: 1) service treatment records documenting the Veteran's reports of back problems prior to service; 2) the April 1970 Medical Evaluation Board findings showing that the Veteran was diagnosed with spondylolysis, L5-S1 and determined to be not physically qualified for duty; 3) the Veteran's testimony from the April 2016 Board hearing; 4) the Veteran's lay statements that he injured his back falling from a bunk bed during service (see, e.g., July 2010 VA medical record; December 2010 private medical record); 5) the Veteran's lay statements that he injured his back falling from a tree (see, e.g., March 2007 private medical record; September 2009 private discharge summary); 6) the Veteran's lay statements that he injured his back falling from a bobcat (see September 2009 hospital discharge summary); 7) the January 2011 private medical statement from Dr. K.P.; and 8) the December 2010 private medical statement from Dr. D.F. (The term "clear and unmistakable" means that the evidence is undebatable.) (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should review the examination report to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 4. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the claim should be readjudicated. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). _________________________________________________ J.W. ZISSIMOS 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).