Citation Nr: 20051964 Decision Date: 08/05/20 Archive Date: 08/05/20 DOCKET NO. 10-45 937 DATE: August 5, 2020 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1997 to July 2007. The Veteran appealed a February 2009 rating decision by the Agency of Original Jurisdiction (AOJ). In a July 2017 Board of Veterans’ Appeals (Board) decision, the Board denied the Veteran’s claim for entitlement to service connection for a low back disability. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court). In March 2018, the Court granted a Joint Motion for Remand (JMR) and remanded this issue to the Board for further proceedings consistent with the JMR. The August 2018 Board decision remanded the case for a new VA opinion. The Board finds that further evidentiary development is necessary and remands the case again to ensure compliance with the Board’s prior remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Pursuant to the March 2018 JMR, the August 2018 Board remand noted the August 2016 VA examiner did not explain what back condition pre-existed service and did not provide adequate rationale for how the evidence suggested a pre-existing back condition at service entry. Furthermore, the August 2016 VA examiner did not explain whether the “exacerbations” during service resulted from the Veteran’s pre-existing condition prior to service. As such, the August 2018 Board remand specifically remanded for an addendum opinion to clarify whether the Veteran had a pre-existing back condition prior to service and to discuss the findings of the Veteran’s chiropractor that her back problem resolved in 1995 and her normal back evaluation at enlistment. The addendum opinion was to also clarify the findings that the Veteran experienced “exacerbations” during service and whether they resulted from the same back condition that pre-existed service. However, the Board finds the August 2019 VA opinion failed to properly address the August 2018 Board remand instructions. The August 2019 VA opinion simply reiterated the facts and stated documentations showed a pre-existing low back injury in 1995 that resulted in mild to moderate intensity requiring chiropractor treatment with a diagnosis of mild lumbosacral strain. The August 2019 VA opinion noted the chiropractor’s note that the problem resolved and also noted the Veteran’s entrance examination revealed no recurrent back pain, but noted the past chiropractor treatment. Overall, the August 2019 VA opinion did not provide an independent opinion or discussion as to whether the Veteran had a pre-existing back condition upon entering service. Furthermore, the August 2019 VA opinion did not discuss whether the Veteran’s in-service back complaints were similar in nature to or exacerbated by the Veteran’s pre-existing back condition in 1995. The August 2019 VA opinion gave a generalized overview of possible etiologies of back pain and even stated repetitive trauma and overuse are common causes of chronic mechanical low back pain, which is often secondary to workplace injury. However, like the August 2016 VA examiner’s opinion, the August 2019 VA opinion gave no adequate rationale or clear opinion. Furthermore, the correct standard of clearly and unmistakably was not used in rendering these opinions as required when considering pre-existing conditions and their aggravation by service. As such, remand is again necessary to obtain an opinion that addresses the above deficiencies. The matter is REMANDED for the following action: 1. Return the claims folder to the clinician who submitted the August 2019 VA opinion. If that clinician is not available, an equally qualified medical professional may be consulted. A new physical examination is not required unless so determined by the clinician. The claims folder must be reviewed in conjunction with the opinion. The clinician is to identify all current back conditions that existed at any point during the period on appeal. Then the clinician is to answer the following questions. Did the Veteran, clearly and unmistakably, have a pre-existing back condition prior to service and if so, what was the diagnosed condition, and did it resolve prior to entering service? If the Veteran did not have a pre-existing back condition prior to service or she had a pre-existing back condition that resolved prior to entering service, is it is at least as likely as not any such current back condition is caused by or related to service? If the Veteran did have a pre-existing back condition prior to service that did not resolve prior to entering service, are the Veterans “exacerbations” and episodes of back issues during service a result of the same back condition that pre-existed service, and was the Veteran’s current back condition clearly and unmistakably not aggravated by service? The clinician is to discuss the finding of the Veteran’s chiropractor that the Veteran’s back problem resolved in 1995 and her normal clinical back evaluation at enlistment. The clinician must alto consider the Veteran’s lay statements. A full and complete rationale for all opinions expressed is required. 2. Then, readjudicate the claim. If the benefit sought remains denied, issue a Supplemental Statement of the Case and afford an opportunity to respond before the record is returned to the Board for further review. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, 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.