Citation Nr: 20052671 Decision Date: 08/07/20 Archive Date: 08/07/20 DOCKET NO. 17-17 312 DATE: August 7, 2020 REMANDED Entitlement to service connection for a thoracolumbar disability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1961 to January 1965. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran and his spouse testified before the undersigned in an April 2019 Board hearing. A transcript is of record. 1. Entitlement to service connection for a thoracolumbar disability The Veteran contends that his current thoracolumbar back disability is related to his service. Specifically, the Veteran contends that his back disability is related to an October 1964 motor vehicle accident during service. In July 2019, the Board remanded this matter in order to obtain an addendum medical opinion. The Board’s July 2019 remand directed a VA examiner to provide opinions related to the Veteran’s back disability, whether it was related to his in-service motor vehicle accident or whether his arthritis was diagnosed or noted within one year of separation. The Board specifically directed a VA examiner to address a May 2019 private medical opinion that stated it is very plausible the Veteran suffered a compression fracture of the thoracic spine in the in-service accident. The examiner was directed to address the Veteran and his spouse’s testimony that he had back pain after his motor vehicle accident. In October 2019, the Veteran underwent a VA examination. The examiner opined the claimed condition was less likely than not incurred in or caused by the claimed in-service injury event, or illness. The examiner reasoned that x-rays studies in October 2019 showed five lumbar vertebral bodies, ordinary alignment, and generally preservation of the disc spaces without acute radiographic abnormality. The examiner noted that in addition the range of motion of the thoracolumbar spine was normal on examination and there was not significant loss of motion of the spine or deficits noted. The examiner stated that it is unlikely that the degenerative arthritis began in such a young claimant within a year of the accident as degenerative arthritic changes are not commonly noted in patients under 25 without diagnosis of arthritis and subsequent treatment to minimize the arthritic process. The examiner further stated it is unlikely that the symptoms manifested within a year after discharge for the above reasons and the record is silent with regards to treatment of back symptoms that are related within a year post discharge. The Board finds that the VA failed to substantially comply with the Board remand instructions. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The October 2019 VA examiner failed to address the May 2019 private opinion which stated it was very plausible the had a compression fracture due to his in-service accident. Therefore, the Board finds a remand is required to obtain an addendum medical opinion. The Board further, notes that the Veteran’s representative argues that the key to the Veteran’s claim is that the back pain began a year after service. Specifically, that the Veteran’s back pain did not begin until he was discharged from the hospital and bean to move around. Thus, upon remand, the examiner must address the contention of back pain after discharge from the hospital. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s degenerative arthritis of the thoracolumbar spine is at least as likely as not related to the Veteran’s service, specifically, the Veteran’s October 1964 motor vehicle accident. The examiner must opine as to the following: (a.) Whether the Veteran’s degenerative arthritis of the spine at least as likely as not began during active service. (b.) Whether the Veteran’s degenerative arthritis of the thoracolumbar spine at least as likely as not manifested within one year after discharge from service. (c.) Whether the Veteran’s degenerative arthritis of the thoracolumbar spine at least as likely as not was noted during service with continuity of the same symptomatology since service. i. The examiner must address the Veteran and his spouse’s testimony that the Veteran experienced pain in his back after the Veteran was discharged from the hospital following the accident. ii. The examiner must discuss the contention that he did not have back pain directly after the accident, but only after he was discharged from the hospital when was moving and had weight bearing. (d.) The examiner must address the May 2019 private physician’s opinion. Specifically: i. That compression fractures usually occur in the lumbar region and it is very plausible the Veteran suffered a compression fracture of the thoracic spine in the in-service accident S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten 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.