Citation Nr: 20031859 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 14-40 870 DATE: May 6, 2020 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from September 1995 to November 1997, and from February 2001 to February 2004. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for lumbar spondylolysis with spina bifida occulta, claimed as a low back disability. The Veteran’s notice of disagreement was received by VA in October 2012. Following the issuance of a Statement of the Case (SOC) in September 2014, the Veteran perfected a timely appeal via her submission of a VA Form 9 in October 2014. On her October 2014 VA Form 9, the Veteran requested a Board hearing at the RO in connection with her appeal. In April 2018, the Veteran agreed to accept a videoconference hearing in lieu of a travel Board hearing. See April 2018 Report of General Information. The Veteran was thereafter scheduled for a Board videoconference hearing to be held in May 2018. Although she was duly notified of the hearing by telephone and by mail, she failed to appear and neither furnished an explanation for her failure to appear nor requested a postponement or another hearing. Pursuant to 38 C.F.R. § 20.702(d) (2018), when a Veteran fails to appear for a scheduled hearing and has not requested a postponement, the case will be processed as though the request for a hearing had been withdrawn. Thus, the Board will proceed with consideration of the appeal based on the evidence of record. In May 2018, the Board remanded this matter for further development and due process considerations. The Board notes that the clinical evidence of record reflects current low back diagnoses in addition to lumbar spondylolysis with spina bifida occulta, including spinal stenosis, degenerative disc disease, and lumbar segmental dysfunction. Thus, the Board has recharacterized the issue on appeal more broadly in order to ensure complete consideration of the Veteran’s claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that VA must construe a claim for service connection to include any disability that may reasonably be encompassed by the claimant’s description of the claim, the symptoms the claimant describes, and the information the claimant submits or that the Secretary obtains in support of the claim). 1. Entitlement to service connection for a low back disability The Veteran contends that her current low back disability had its inception during active duty, as evidenced by the fact that she was treated on multiple occasions for low back pain and has experienced intermittent low back pain since that time. Alternatively, she contends that her current low back disability is causally related to an in-service injury. Service treatment records corresponding to the Veteran’s first period of active duty show that at her May 1995 military enlistment medical examination, the Veteran’s spine was examined and determined to be normal. In-service treatment records reflect that in November 1995, the Veteran visited the emergency room complaining of hip and back pain starting two weeks prior. In December 1995, she was diagnosed with a stress fracture of the left sacroiliac joint, though later treatment notes from March 1996 indicate that there was no stress fracture and the Veteran’s hip and back pain were instead attributable to greater trochanteric bursitis syndrome. Treatment notes from March 1996 also include the Veteran’s reports that her pain began during Basic Training. She continued to complain of low back pain in April 1996 and January 1997 and was put on a physical profile. Service treatment records corresponding to the Veteran’s second period of active duty show that at her November 2000 military enlistment medical examination, the Veteran’s spine was again examined and determined to be normal at that time. In-service treatment records reflect that in August 2002, the Veteran again reported low back pain. She also endorsed accompanying pain, numbness, or tingling in her legs. She indicated that her job required activities such as lifting for 9 hours daily, as well as pushing, pulling, and twisting her back while lifting or lowering. A physical examination showed no neurologic abnormalities. In pertinent part, the post-service clinical evidence shows that in December 2006, the Veteran visited a VA emergency room with complaints of mid to lower back pain for the past month which was worsening. In providing her history, the Veteran indicated that she worked as a shipping clerk and did heavy lifting and pulling in her job and had been involved in a motor vehicle accident a month and one half prior with subsequent back pain. The Veteran also reported a prior history of back pain, but stated that this current episode of back pain felt different. X-ray studies were unremarkable but for spina bifida occulta. She was diagnosed as having muscle strain. The Veteran’s treatment records since December 2006 continue to show consistent complaints of low back pain, including in: December 2007; October 2008; February, June, July, and August 2010; January, March, April, May, June, July, and November 2012; January, February, July, and September 2013; January, February, March, April, May, August, October, and November 2014; February, March, May, and June 2015; January 2017; and April and December 2018. With respect to current pathology, the clinical record on appeal contains multiple findings. An April 2012 VA x-ray showed some straightening of the Veteran’s lumbar spine. L5–S1 spondylolysis was also noted without slippage demonstrated. A VA MRI from that month also showed bilateral pars defects of L5 with spina bifida occulta. Further, incidental note was made of dural ectasia from L4 to L5. Finally, at L5–1, there was central disc bulging causing minimal spinal stenosis. In July 2016, imaging studies showed the spina bifida occulta at L5, as well as a small osteophyte off the anterior aspect of the L5 vertebral body. The Veteran’s treatment providers have also diagnosed her as having chronic low back-pain syndrome with degenerative disc disease at L5-S1 (January 2012 VA physical Medicine Rehab Note) and thoracic and lumbar segmental dysfunction (January 2017 VA chiropractor note). In light of the evidence of record, in May 2018, the Board remanded the matter to obtain a medical opinion on the nature and etiology of the Veteran’s current low back disability. Pursuant to the Board’s remand instructions, the Veteran underwent a VA medical examination in June 2019. Unfortunately, the medical opinion thereafter obtained is inadequate in multiple respects. As such, remand of this matter for an additional VA medical opinion is necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4). The examiner’s June 2019 report notes that the Veteran has a history of diagnoses of (1) spina bifida occulta in 2006, which he described as a congenital defect which does not typically cause symptoms; and (2) lumbosacral strain in 2002. The examiner concluded that the Veteran’s current low back disability, which he did not specifically identify, was not as likely as not due to the reported in-service injury or otherwise incurred during service. No rationale was provided. In response to a request for clarification from the RO, in July 2019, the examiner indicated that the Veteran’s current low back diagnoses were (1) the previously identified spina bifida occulta, which he identified as a congenital defect; and (2) thoracic and lumbar segmental dysfunction. He indicated that a December 2016 MRI showed “no evidence of degenerative arthritis of the LS, spondylosis, or degenerative disc disease.” He did not, however, address the previous imaging studies conducted during the pendency of the claim which did show the presence of an osteophyte off the anterior aspect of the L5 vertebral body, spondylosis, and degenerative disc disease/spinal stenosis. The examiner also stated that thoracic and lumbar segmental dysfunction are chiropractic terms. The opinion and addendum, however, does not explain whether the examiner discounts those diagnoses and if so why. In addition, in reviewing the Veteran’s service treatment records, the examiner noted that in August 2002, the Veteran was seen for low back pain “which was not associated with radiating pain or any worrisome neurologic physical examination findings.” As set forth above, however, the Veteran did, in fact, endorse pain, numbness, or tingling in her legs in August 2002, although a clinical examination showed normal straight leg raising, strength, and deep tendon reflexes. For these reasons, the medical opinion is inadequate and corrective action is necessary. The matters are REMANDED for the following actions: 1. Provide access to the Veteran’s claims folder to a clinician for the purposes of obtaining a medical opinion on the nature and etiology of the Veteran’s current low back disability. The need for an examination is left to the discretion of the clinician. After reviewing the record, the clinician should respond to the following: (a) The record on appeal reflects that during the pendency of the claim, the Veteran has been diagnosed as having: (i) bilateral pars defects of L5 with spina bifida occulta; (ii) dural ectasia at L4-L5; (iii) spondylolysis at L5-S1; (iv) spinal stenosis at L5–S1; and (v) a small osteophyte at L5. See e.g April 2012 and July 2016 VA imaging studies. She has also been diagnosed as having (vi) lumbar segmental dysfunction. See e.g. January 2017 VA chiropractor note. For each of these identified disabilities/pathologies, is it at least as likely as not that they had their inception during the Veteran’s active duty or are otherwise causally related to an in-service disease or injury? In providing a rationale for these opinions, the examiner should reference the relevant evidence of record, to include the service treatment records which reflect numerous notations of back pain as well as the Veteran’s credible statements of intermittent low back pain since service. (b) If not, for each of these identified disabilities/pathologies, is it at least as likely as not that they are causally related to or aggravated by the Veteran’s service-connected right knee patella tendinitis and/or her service-connected right knee instability? In providing a rationale for this opinion, the examiner should reference the relevant evidence of record, to include an August 20, 2014 private clinical record which shows the Veteran reported that the physical therapy she was undergoing for her service-connected right knee disabilities was worsening her low back pain. (Continued on the next page)   (c) The Veteran’s spina bifida occulta has been identified as a congenital defect. Is it at least as likely as not that the spina bifida occulta was subject to a superimposed disease or injury during service that resulted in additional disability? If so, please identify the additional disability. In providing the requested rationale, the clinician should reference the relevant evidence of record, to include the service treatment records which reflect numerous notations of back pain and the Veteran’s credible statements of an in-service low back injury as well as strenuous military duties which required heavy lifting. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hillan Sosa, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.