Citation Nr: 21000724 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-43 332 DATE: January 6, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1964 to August 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In the August 2017 VA form 9, Substantive Appeal, the Veteran declined an optional Board hearing; however, in the August 2017 informal hearing presentation, the Veteran’s representative stated that the Veteran had requested a Board hearing. The Board sought to clarify this discrepancy, and in a November 2020 email, the Veteran’s representative stated that in the absence of a specific request for a Board hearing from the Veteran, the representative’s prior statement regarding a Board hearing was rendered in error. In December 2020, the Board mistakenly mailed the Veteran a letter notifying him that he had requested a Board hearing. This letter informed the Veteran of the various Board hearing options and granted him 30 days to respond. The Veteran was told, “if you do not respond within 30 days from the date of this letter, the Board will use your previous selection to determine your choice of hearing.” The Veteran has not responded in the time allotted. The Board regrets the confusion created by the December 2020 letter, as there is no convincing evidence that the Veteran has requested a Board hearing in this matter. The Veteran has never explicitly requested a Board hearing, and in the August 2017 VA form 9, the Veteran clearly indicated that he did not want an optional Board hearing. The Veteran’s representative has indicated that the representative’s August 2017 reference to a Board hearing was issued in error. Accordingly, the Board finds that the Veteran has not requested a hearing in this matter. As this decision is not a final adjudication of the claim, the Veteran is entitled to request a post-remand Board hearing, if he desires. See Quinn v. Wilkie, 31 Vet. App. 284 (2019). The Board has fulfilled the Veteran’s June 2017 Privacy Act request, see November 2020 letter, and no further Privacy Act requests remain pending. This matter was last adjudicated by the RO in a July 2020 Supplemental Statement of the Case. Since that time additional relevant VA-generated evidence has been received. In a November 2020 letter, the Board sought waiver of initial RO consideration of this evidence. The Veteran was notified that he had 45 days to respond to the letter, and if no response was received, the Board would assume that he did not wish to have the Board decide his appeal at this time, and the claim would be remanded for the agency of original jurisdiction (AOJ) to consider the newly received evidence in the first instance. The Veteran has not responded in the time allotted. Consequently, the matter must be remanded for the RO to readjudicate the claim with consideration of all evidence received since the July 2020 Supplemental Statement of the Case. 38 C.F.R. §§ 19.31, 19.37(b), 20.1305(c) (formerly 20.1304(c)). In February 2019, the Board remanded the claim to obtain a VA addendum medical opinion addressing whether the Veteran’s current low back disability was etiologically related to the low back complaints documented in his service treatment records or was otherwise aggravated by his service-connected residuals of urethritis. In the February 2019 decision, the Board inadvertently overlooked a July 2017 VA medical opinion which declined to link the Veteran’s current low back disability to his active duty service. Unfortunately, the rationale underlying this medical opinion was conclusory, rendering it insufficient to resolve the appeal. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a mere conclusion statement is insufficient to allow the Board to make an informed decision as to the weight to be assigned to the medical statement). In an October 2019 opinion, a VA examiner opined that the Veteran’s current low back disability was less likely than not related to his active duty service, proximately due to his service-connected urethritis residuals, or aggravated by his service-connected urethritis residuals. For each opinion, the VA examiner provided the same rationale: Not actually a disease, degenerative disc disease refers to a condition in which pain is caused from a disc that loses integrity. Several factors can cause discs to degenerate, including age. Specific factors include: the drying out of the disc. As we age, the disc dries out and doesn’t absorb shocks as well. Daily activities and sports can cause tears in the outer core of the disc. Injuries can cause swelling, soreness and instability. Unlike other tissues of the body, there is very little blood supply to the disc, so once a disc is injured, it cannot repair itself, and the discs can start to deteriorate. While the VA examiner noted the Veteran’s in-service complaints, he did not address their significance, if any, in the development of the Veteran’s current low back disability. Additionally, the VA examiner noted that daily activities and injuries could precipitate a disc defect, yet he did not address whether the Veteran’s in-service reports of low back pain following heavy work could have initiated a back injury that was etiologically linked to the Veteran’s current low back disability. The VA examiner gave a thorough overview of degenerative disc disease but did not apply the espoused medical principle to the Veteran’s specific medical history/circumstances. Regarding aggravation, the VA examiner check-marked that the Veteran’s current low back disability was less likely than not aggravated by his service-connected residuals of urethritis, but the rationale that was provided referenced the “proximately due to” standard versus the “aggravation” standard. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Moreover, the February 2019 Board remand explicitly directed the VA examiner to address the Veteran’s statements regarding chronic back pain since service and this was not accomplished. Accordingly, the claim shall be remanded for an additional VA medical opinion that corrects the evidentiary issues identified above and that specifically complies with the Board’s February 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Lastly, the RO is requested to obtain updated VA treatment records from September 2020 to the present. 38 C.F.R. § 3.159(c)(2) and (3). The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from September 2020 to the present. 2. Obtain an addendum VA medical opinion from an appropriate VA examiner regarding the etiology of the Veteran’s current low back disability. Following a complete review of the electronic claims file, including a copy of this REMAND, the VA examiner is requested to address the following inquiries: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current low back disability was incurred in or is otherwise etiologically related to the Veteran’s active duty service, to include his report of a back strain while lifting boxes and equipment while stationed at Elmendorf Air Force Base in Anchorage, Alaska? The VA examiner must specifically consider and address the Veteran’s service treatment records which include an impression of L-S strain in May 1967 and complaints of low back pain in August 1967, as well as recurrent back pain indicated in the June 1968 Report of Medical History at service discharge and the notation of strained back in 1965 recorded on the June 1968 Report of Medical Examination. The VA examiner must also specifically address the Veteran’s lay reports of continuous chronic low back pain since service, as well as a post-service April 2007 slip and fall injury. See e.g., December 1976, December 2015 lay statements; July 2008 Duke Medicine records; June 2016 VA examination “Medical History;” July 2017 VA examination “Medical History.” The VA examiner is requested to reconcile his or her opinion with the rationale provided by the October 2019 VA examiner; however, the VA examiner is cautioned that his or her opinion must address medical principles in relation to the Veteran’s specific medical history/circumstances. (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current low back disability is proximately due to, the result of, or aggravated by the Veteran’s service-connected residuals of urethritis? In answering this question, the VA examiner is reminded of the recent precedential decision by the United States Court of Appeal for Veterans Claims in Ward v. Wilkie, 31 Vet. App. 233 (2019), which held that aggravation under 38 C.F.R. § 3.310(b) does not require that there be “permanent worsening” of the nonservice-connected disability. Instead, secondary service connection is warranted for “any incremental increase in disability—any additional impairment of earning capacity—in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase—regardless of its permanence.” See id. at 239. The examiner must provide a complete and fully articulated explanatory rationale for any opinion expressed that is based on the examiner’s clinical experience and medical expertise; established medical principles; and the evidence in the electronic claims file. [Continued on Next Page] 3. Thereafter, readjudicate the claim. If any benefit sought remains denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Galante 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.