Citation Nr: 20044046 Decision Date: 06/30/20 Archive Date: 06/30/20 DOCKET NO. 13-02 520 DATE: June 30, 2020 REMANDED Entitlement to service connection for a back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1968 to August 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in May 2015. The Board remanded this matter in July 2015, November 2015, November 2017, and January 2019 for additional development. In the November 2017 remand, the Board determined that no back-specific disability was noted at entrance into service and that the evidence did not clearly and unmistakably establish that any such disability pre-existed his service. Thus, the Board determined that the Veteran was presumed to have been sound at service entry with respect to his back, and his claim would be considered on a direct basis. In the January 2019 decision, the Board determined that the prior VA medical opinions were most focused on addressing whether or not the Veteran had a preexisting condition, and if so, whether that condition was clearly and unmistakably not aggravated by service. Therefore, the Board remanded for a medical opinion addressing whether the Veteran’s back disorder was related to his service, specifically considering the numerous in-service complaints of low back pain, the diagnosis of lumbar sprain, and issuance of a back brace. The remand directives specifically stated that the examiner should not discuss a preexisting back disability or aggravation of the same. While the December 2019 VA examiner addressed the in-service issuance of the back brace, she failed to take into account the Veteran’s lay statements, his well-documented in-service complaints of back pain, and the repetitive heavy lifting of radios related to his military occupational specialty (MOS) as a radio repairman. Further, in direct contradiction to the Board’s remand instructions, the examiner detailed the Veteran’s pre-service back treatment and opined that his back disorder was not aggravated by service. See Stegall v. West, 11 Vet. App. 268 (1998). Thus, an addendum opinion from a new examiner is required. Updated treatment records should also be secured. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding private treatment records. 3. Then obtain an addendum opinion concerning the etiology of the Veteran’s back disorder from a different examiner than the one who provided the December 2019 opinion. No additional examination of the Veteran is necessary, unless the reviewing examiner deems otherwise. Following a review of the claims file, the examiner should address the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s back disability had its onset in or are otherwise related to service, to include as the result of the cumulative impact of his duties that included regular heavy lifting of radios (70 to 80 pounds)? In addressing this question please discuss: (1) documented in-service complaints of low back pain, issuance of the back brace, and the diagnosis of lumbar sprain; (2) the Veteran’s testimony as to back problems beginning in service attributed to constant lifting of heavy radios by himself; (3) his testimony that he was treated with muscle relaxants in service; and (4) his reports of continuous back pain since service as a result of repetitive heavy lifting of radios related to his MOS as a radio repairman. In addressing this question, the examiner must assume items 2-4 as true, even despite the absence of “objective documentation.” See January 2013 VA Form 21-4138, Statement in Support of Claim; May 2015 Board hearing at 7. (b) Please state whether a nexus between the Veteran’s degenerative joint disease, degenerative disc disease of the lumbar spine, and lumbar lordosis (see August 2015 VA examination report) and service is medically consistent with the symptomatology reported by the Veteran in items (2)-(4) above. In answering the above questions, please note that the Board has found that the presumption of soundness has not been rebutted. Therefore, the Veteran did not have a back disorder that pre-existed his service, and any supporting rationale should therefore not discuss a pre-existing back disorder or aggravation of the same. A comprehensive rationale must be furnished for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Forde, 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.