Citation Nr: 20031900 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 12-22 786 DATE: May 6, 2020 REMANDED Service connection for a low back disorder.   REASONS FOR REMAND The Veteran served on active duty from September 1972 to September 1973. This matter is on appeal from a January 2012 rating decision. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in May 2014. In October 2014, the Board remanded the claim for further development. The Board denied this appeal in a March 2015 decision. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), which issued a memorandum decision in August 2016 vacating the Board’s decision and remanding for readjudication. The Board again remanded the matter in May 2017 and January 2018. Service connection for a low back disorder. This issue is remanded as there was not substantial compliance with the prior remand from the Court. The Board last remanded this matter in January 2018 to obtain relevant medical records from non-VA providers who had treated the Veteran through VA’s Choice program. Upon remand, those records were obtained. The Board’s remand also directed the RO to obtain a VA opinion addendum should any relevant medical records be obtained. As new records were obtained upon remand, the RO also obtained a new VA opinion addressing whether the Veteran’s condition may be due to service. The opinion was provided in December 2019. This opinion is not entirely adequate. The examiner gave a separate opinion regarding the Veteran’s four separate lumbar spine diagnoses. First, the examiner opined that there was no medical nexus for the lumbar foraminal stenosis related to service. The examiner observed that the Veteran was treated for musculoskeletal back pain during service in February 1973. The examiner observed that, on a Back DBQ examination in 2011, the Veteran contended that his back pain was due to several falls in service, one from a telephone pole (18-20 feet) and several while walking. The examiner noted that x-rays of the lumbar spine were negative. The examiner found that there was no record of any further treatment of the back condition in service, and the separation examination was silent regarding any back complaints. The examiner also observed that the lumbar foraminal stenosis was diagnosed on an MRI of the lumbar spine in 2004. The examiner found that, while the Veteran was conceded to provide a reliable medical history regarding the mechanism of injury for his back pain—a fall, or several falls—this would not cause foraminal stenosis of the lumbar spine. The examiner noted that the MRI in 2004 also noted a disc protrusion at L4-5, but the lack of chronicity of care for any lumbar degenerative disc disease (DDD) prior to 2004 argued against any etiology in service. The examiner opined that the gap of 31 years since service with no documented peripheral nerve symptoms or radicular complaints was not consistent with an etiology due to the Veteran’s back pain (regardless of the mechanism of injury during service). Second, with regard to the diagnosis of lumbar strain, the VA examiner observed that the diagnosis was made on the Back DBQ examination in September 2019. The examiner noted the medical history provided by the Veteran at the examination stated that the onset was a fall from a telephone pole (20-30 feet) during service in 1973. The Veteran had stated that he had back pain since then until the symptoms worsened in 1993, and the examiner found that the Veteran was conceded to be a reliable historian and that his testimony was sufficient to establish a chronicity of symptomatology. However, the VA examiner explained, the Veteran was not capable of diagnosing the back pain. To this end, the examiner reasoned that the STRs provided only a diagnosis of low back pain with no record of treatment for lumbosacral strain prior to the diagnosis at the examination in 2019. Hence, the examiner found no established medical nexus for a diagnosis of lumbosacral strain incurred in or related to service. Third, regarding degenerative arthritis, the VA examiner opined that this condition, first diagnosed in 2006, “is at least as likely as not related to the normal wear and tear associated with aging.” The examiner reasoned that there was no radiological evidence of traumatic arthritis, and therefore no evidence to support an etiology related to the Veteran’s reported mechanism of injury for back pain due to fall(s). Finally, regarding intervertebral disc syndrome (IVDS), the VA examiner found that the condition, diagnosed in 2019, was related to the lumbar DDD with bulging discs and had no physiological or etiological basis to service. The examiner reasoned that there were no documented radicular symptoms prior to 2004 and no established medical nexus related to service. The examiner noted that the history provided by the Veteran during orthopedic and neurology examinations from 2004-2006 indicated that the back pain had an onset from lifting while working. The examiner also found significant that the Veteran had stated that his neuropathic symptoms began after surgery on the left foot/ankle in 2002. The examiner concluded that the Veteran’s neuropathic symptomatology of the left lower extremity was not consistent with MRI and examination findings, and a diagnosis of low back pain with left L4-5 nerve impingement was given on the neurology examination in 2005. The Board finds that this VA examiner’s opinion is not consistent with the Court’s remand in August 2016. At that time, a VA examiner in December 2011 had given an opinion that was substantially the same as the December 2019 VA examiner’s opinion. Of particular relevance, the December 2011 VA examiner had relied on a history that the Veteran “did not report any back problems until he was lifting a tire out of the back of a vehicle.” (Medical records shows that this occurred in November 1994.) The Court concluded that the December 2011 VA examination was based on an inaccurate factual predicate because the examiner did not consider a medical record from March 1993 showing that the Veteran was taking medication for back pain. The Court correctly pointed out that this March 1993 medical record “objectively predated the injury the [V]eteran suffered while working on a car.” As this would indicate that the Veteran had symptoms prior to the November 1994 injury, the December 2011 VA examiner’s rationale that the Veteran did not report any back problems prior to that injury was factually inaccurate. The Veteran then underwent a second VA examination in July 2012. As the Court observed, that VA examiner’s opinion was internally inconsistent because the VA examiner stated that “[b]ack pain is due to an injury of the muscles and ligaments of the back.” However, the Court pointed out, the examiner failed to diagnose any injury of the muscles or ligaments of the back; instead, the examiner found that the [V]eteran had “lumbar spine degenerative changes.” The Court also found that the record “reflects that the first post service radiographic studies taken of the [Veteran’s] back revealed forminal stenosis and a disk herniation; according to the Merck Manual, these conditions cause lower back pain.” (Internal citations omitted.) As with the two opinions at issue before the Court, the December 2019 VA examiner’s opinion is also based on an incomplete factual predicate and is internally inconsistent. First, the VA examiner found that there was a “lack of chronicity of care for any Lumbar DDD prior to 2004.” As the Court pointed out, the Veteran was already taking medication for low back pain by March 1993. This indicates that there was a chronicity of care prior to March 1993. Hence, the examiner’s factual foundation was incorrect. Second, the VA examiner found that the Veteran gave a credible history of chronicity of symptomatology since service and gave a reliable medical history regarding the mechanism of injury for his back pain. Yet, the VA examiner repeatedly found that the lack of treatment argued against a relationship to service. This appears internally inconsistent because the VA examiner accepted the Veteran’s statements attributing his ongoing post-service symptoms to the in-service injuries, but nonetheless found no relationship to service. In doing so, the VA examiner repeatedly relied on an absence of documented treatment. To this end, the VA examiner adequately explained that the Veteran’s degenerative arthritis could not medically be related to service because the objective radiological evidence did not show traumatic arthritis. Otherwise, however, this VA examiner impermissibly relied on an absence of documented treatment after service without explaining why, as a medical matter, the Veteran would have sought treatment or complained of the condition during service, or why it was an absence of treatment (as opposed to symptoms) that was medically significant. See, e.g., McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). Stated differently, it is not clear from the opinion how the examiner could both accept the Veteran’s statements of ongoing symptoms attributable to the in-service injuries, but reject those statements to find no nexus to the accepted statements attributing the symptoms to service. Hence, the VA opinions of record do not yet substantially comply with the Court’s memorandum decision. At this stage, the Board finds that remand for an independent medical opinion is warranted pursuant to 38 U.S.C. § 5109 . The matters are REMANDED for the following action: Obtain an independent medical examination opinion pursuant to 38 U.S.C. § 5109 from an appropriate specialist. The examiner is asked to review the record and furnish an opinion with respect to the following question(s) regarding whether the Veteran has a low back disability that is at least as likely as not related to an in-service injury, event, or disease, including complaints of back pain documented in service in February 1973. The examiner is asked to separately address the two following alternative questions: (a.) The examiner should first address whether each current low back diagnosis is consistent with a fall during service when assuming as true that the Veteran did not have any further symptoms after symptoms until 1993. (b.) Alternatively, the examiner should address whether each current condition is consistent with a fall during service when assuming the Veteran did have continuous symptoms after service until 1993. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, 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.