Citation Nr: 1824902 Decision Date: 04/25/18 Archive Date: 05/03/18 DOCKET NO. 10-22 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Haroon Anwar, Esq. WITNESSES AT HEARING ON APPEAL The Veteran and His Wife ATTORNEY FOR THE BOARD P. Timmerman, Associate Counsel INTRODUCTION The Veteran served on active duty in the Navy from October 1964 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In December 2011, the Veteran appeared and testified at a hearing before a Veterans Law Judge. A transcript of the hearing is of record. In an April 2016 decision, the Board denied entitlement to service connection for a low back disability. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), which issued an order in July 2017 granting a Joint Motion for Partial Remand filed by the Veteran's representative and the VA Office of the General Counsel. The Court's order vacated the portion of the Board's April 2016 decision that denied entitlement to service connection for a low back disability. All other issues on appeal were dismissed at the parties' request. The parties agreed that the April 2016 decision failed to provide an adequate statement of reasons and bases for its decision, because it "did not perform any analysis as to whether entitlement to service connection may be warranted for [the Veteran's] low back condition based upon continuity of symptomatology theory under 38 C.F.R. §3.303(b)." In December 2017, the Board remanded the case for a new VA examination and nexus opinion. The Board directed that the examiner give an opinion as to whether it was at least as likely as not that the Veteran's currently diagnosed low back disability was related to his period of service, and that in so doing the examiner consider and explicitly address the Veteran's testimony that he had had low back symptoms continuously since his separation from service. The Board also directed that the examiner give an opinion as to whether it was at least as likely as not that any currently diagnosed low back disability had been caused or aggravated by the Veteran's service-connected pilonidal cyst. In January 2018, the Veteran was afforded a new VA examination. However, as described below, the examiner failed to adequately address the Veteran's testimony that he had had low back symptoms continuously since separating from service. A Board remand confers on the Veteran the right to compliance with the remand orders, and imposes on VA a concomitant duty to ensure such compliance. Stegall v. West, 11 Vet. App. 268. 271 (1998). Therefore, the case must be remanded to the AOJ for compliance with the Board's prior remand directives, as well as for the additional reasons described below. REMAND The Veteran is seeking service connection for a low back disability. He claims that his current disability is related to one of three in-service injuries. First, the Veteran claims that shortly after enlisting in 1964, he sustained an injury to his back when a torpedo he was unloading fell and pinned him against the wall. Second, following surgery for a pilonidal cyst in 1968, the Veteran fell and reopened the surgical wound. Finally, in 1968 the Veteran sustained a subscapular muscle strain while carrying heavy bottles. The Veteran has undergone four VA examinations throughout the claim period. Most recently, in a January 2018 VA examination, the examiner noted a diagnosis of mild degenerative joint disease (DJD) of the lumbar spine, and rendered the following opinions: - The Veteran's DJD was less likely than not incurred in or caused by his torpedo accident; - The Veteran's DJD was at least as likely as not caused by the natural aging process; - The Veteran's DJD was less likely than not proximately due to or the result of his remote history of pilonidal cyst; and - The Veteran's DJD was less likely than not permanently aggravated beyond its natural progression by his remote history of pilonidal cyst. The examiner noted that the Veteran's upper extremities and spine were both marked "normal" on the his separation exam, and reasoned that there was no objective medical evidence that either the Veteran's torpedo accident or his noted subscapular muscle strain did not entirely resolve in service without residuals. He concluded that the Veteran's contention of low back pain ever since service was not supported by the medical record. In addition, the examiner noted that the Veteran did not currently have a pilonidal cyst, and reasoned that in any case there was "no mechanism of action for cause or aggravation of [DJD] by pilonidal cyst." The examiner's opinion regarding a possible nexus between the Veteran's current low back disability and his history of pilonidal cyst is supported by a fully articulated medical rationale, and is adequate for VA rating purposes. However, in giving a rationale for the opinion regarding a possible nexus between the Veteran's low back disability and his active duty service, the examiner failed to adequately address the Veteran's testimony that he had experienced low back pain continuously since service. Instead, the examiner merely noted the lack of corroborating objective medical evidence. Therefore, because the Board's prior remand directive required an examination to take into account the Veteran's testimony, the Board must remand the case for an examination compliant with this directive. Furthermore, in a January 2015 prior remand, the Board made reference to a June 2013 VA spine examination and opinion. Although the claims file contains a June 2013 spine Disability Benefits Questionnaire, no accompanying opinion was located in the claims file. Therefore, the case must also be remanded in order to associate the June 2013 VA medical opinion with the claims file. Accordingly, the case is REMANDED for the following action: 1. Locate the June 6, 2013 VA examination and opinion, and associate it with the claims file. 2. Obtain all outstanding VA Medical Center records and associate them with the claims file. 3. Forward the Veteran's claims file to an appropriate clinician for the purpose of obtaining an opinion as to whether the Veteran's current low back disability is related to the injuries sustained in service. Additional physical examination of the Veteran is not necessary, unless the examiner determines otherwise. In rendering the requested opinion, the examiner should presume as true the Veteran's reports of continuity of symptomatology from the time of his discharge from service until the present time. In this regard, the examiner is advised that the absence of contemporaneous clinical evidence objectively supporting the continuity of symptomatology may not serve as a basis for providing a negative nexus opinion. The examiner should provide a robust rationale, with citation to relevant peer-reviewed medical literature, as appropriate, for the conclusion reached. If the examiner cannot provide the requested opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 4. After completing the above actions, and any additional action deemed warranted, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond. Then, return the case to the Board, if in order. 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. _________________________________________________ S. C. KREMBS 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) (2017).