Citation Nr: 1809021 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 07-06 638 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a low back disability, including as secondary to a service-connected bilateral (left and right) knee disability. WITNESS AT HEARING ON APPEAL The Veteran-Appellant ATTORNEY FOR THE BOARD N. Robinson, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1985 to October 1994. This appeal to the Board of Veterans' Appeals (Board/BVA) originated from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In support of this claim, the Veteran twice testified at hearings at the RO, initially in January 2008 before a local hearing officer and more recently in August 2010 before the undersigned Veterans Law Judge of the Board (Travel Board hearing). Transcripts of both hearings are of record. The Board denied this claim in a June 2015 decision, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court/CAVC). In July 2016, the Court issued an Order granting a Joint Motion for Remand (JMR), vacating the Board's June 2015 decision denying this claim and remanding it to the Board for further development and re-adjudication in compliance with directives specified. In December 2016, after receiving the case back from the Court, the Board in turn remanded the claim to the Agency of Original Jurisdiction (AOJ) for the further development and consideration that had been mandated. Regrettably, however, the Board must again remand this claim to the AOJ. REMAND Although the Board sincerely regrets the additional delay that will result from again remanding, rather than re-adjudicating, this claim, this additional remand is necessary to ensure there is a complete and accurate record upon which to decide this claim so that every possible consideration is afforded. In short, there was not the required substantial compliance with the Board's previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). More to the point, the February 2017 VA examiner's unfavorable nexus opinion is not supported by sufficient rationale, and this more than anything else determines an opinion's probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). In Neives-Rodriguez, the Court held that most of the probative value of an opinion comes from the discussion of its underlying reasoning or rationale, so a medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two." Neives-Rodriguez, at 301. Pursuant to the JMR, the Board directed the examiner to consider the significance of the Veteran's January 1995 claim for service connection for a back disability. While examiner did reference that prior claim, he did not adequately attempt to explain its significance. Specifically, the examiner stated, "even though [the Veteran] filed a claim in 1995, it is less likely that his claim at that point was related to his service." The examiner then again points to the Veteran's subsequent car accident and assault as reasons for his present-day degenerative spine disease. Therefore, on remand, the examiner should elicit from the Veteran the reasons for his 1995 claim and provide an opinion regarding that earlier claim grounded in the examiner's analysis of the Veteran's reported symptoms and back treatment in service. The Board also finds that February 2017 opinion deficient because it does not include a nexus statement regarding the purported relationship, if any, between the Veteran's back injuries in service, his reports of continued symptoms since, and his lumbar strain diagnosis. Instead, the examiner focused almost entirely on debunking any link between the Veteran's service and his present-day degenerative spine disease. The Board also finds that the examiner's description of the Veteran's relevant service treatment records (STRs) is cursory and over general because the clinicians in service did not document complete examination findings such as motor, sensation, or use the word mild, as implied by the VA examiner. If the examiner believes, based on his or her review, clinical knowledge, and interview of the Veteran that the STRs reflect minor injuries, the examiner must so state and provide his or her rationale for that conclusion. Accordingly, this claim is again REMANDED for the following action: 1. Obtain and associate with the claims file all updated VA or adequately identified private treatment records relevant to this claim on appeal. 2. Upon receipt of all additional records, obtain additional medical comment (supplemental examination and addendum opinion) concerning the nature, extent, and etiology of the Veteran's claimed low back disability - in particular its purported relationship or correlation with his military service. The examiner must review all relevant evidence, including specifically a complete copy of this remand, the July 2016 JMR, the Veteran's previous examination reports, his hearing testimony, his STRs, and his relevant VA treatment records. Based on a review of this evidence, the examiner must provide an opinion on the following questions: a) Please identify by diagnosis all current back disabilities present during the appeal period, including especially confirming whether the Veteran has a lumbar strain and degenerative disc disease. See, e.g., February 2008 VA examination, January 2004 MRI review by Dr. Z.C. b) Is it as likely as not (probability of 50 percent or greater) that any of the Veteran's diagnosed low back disabilities had their onset or are otherwise related to his active duty service? c) Is it as like as not (probability of 50 percent or greater) that any of the Veteran's diagnosed low back disabilities were CAUSED by his service-connected knee disabilities? d) Is it as like as not (probability of 50 percent or greater) that any of the Veteran's diagnosed low back disabilities were AGGRAVATED by his service-connected knee disabilities? Aggravation in this context means the disability increased in severity beyond its natural progression. In making these necessary determinations, the examiner MUST consider the relevance of a January 1995 application for benefits in which the Veteran claimed entitlement to service connection for a back condition to ALL of his noted back disabilities, including the degenerative disc disease and lumbar strain mentioned. As noted in the July 2016 JMR, that initial application in January 1995 evidences the Veteran's report of some sort of back problem during the period of time between his discharge from active duty service in October 1994 and his subsequent inter-current injuries in 1997 and 1998, and thus contradicts the rationale provided in the February 2008 VA opinion on this issue. In providing this response, the examiner MUST also elicit from Veteran and report a detailed history of his back symptoms from service separation to present. The examiner should note the Veteran's April 2005 report of continuous back pain symptoms since 1994 and his May 2006 report of back pain for as long as he could remember. The examiner should comment on whether these reported symptoms are consistent with the Veteran's current lumbar strain, degenerative disc disease, or any other back disability diagnosed since the filing of this claim or contemporaneous to that. All opinions provided must include complete rationale specifically addressing the concerns indicated in this remand and its directives, as well as in the Court-granted JMR, preferably with citation to supporting factual data and medical literature or authority, as appropriate. If an opinion cannot be rendered without resorting to mere speculation, the examiner must provide explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. In other words, merely saying that he/she cannot respond will not suffice. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence). 3. Then readjudicate this claim in light of this and all other additional evidence. If this claim continues to be denied or is not granted to the Veteran's satisfaction, send him a Supplemental Statement of the Case (SSOC) and give him time to respond to it before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board may be appealed to the Court. 38 U.S.C. § 7252 (2012). This remand is a preliminary order and not an appealable decision on the merits of the claim. 38 C.F.R. § 20.1100(b) (2017).