Citation Nr: 21000729 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-47 431 DATE: January 6, 2021 REMANDED Entitlement to service connection for a low back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1956 to June 1959 and December 1961 to December 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In August 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In December 2019 and September 2020, the Board remanded the claim on appeal for additional development and it now returns for further appellate review. Entitlement to service connection for a low back disorder. As noted in the December 2019 and September 2020 Remands, the Veteran contends that he has a low back disorder that had its onset in service as a result of his in-service duties requiring lifting, or is otherwise related to injuries sustained therein. In this regard, service treatment records reflect that the Veteran was treated for an acute and subacute back strain in August 1958 and a sacroiliac strain in February 1962; however, X-rays were negative at both visits. Additionally, at the August 2019 Board hearing, he testified that his back has hurt since service and he began seeing chiropractors following his discharge from service. As such Remands found that unfavorable February 2017 and July 2020 VA opinions and a favorable September 2019 opinion from L.M., D.C., were inadequate to decide the claim, the case was most recently remanded in September 2020 to obtain an addendum opinion addressing whether the Veteran’s low back disorder had its onset in, or was otherwise related to, his military service, to include as a result of his in-service duties requiring lifting and/or his documented treatment for back strain in August 1958 and sacroiliac strain in February 1962, or manifested within one year of separation from service in June 1959 and December 1965. In offering the former opinion, the examiner was directed consider the Veteran’s report of receipt of chiropractic care from 1964 to 1965 (the records of which are unavailable); his treatment records noting nagging back pain in October 2000; an October 2005 X-ray showing degenerative changes of the thoracic spine; a September 2014 X-ray showing multi-level degenerative disc disease; and a January 2015 MRI showing degenerative disc changes with facet arthropathy in the lumbar spine. The examiner was also directed to consider the Veteran’s report of the onset of back pain in service with a continuity of symptomatology thereafter, and advised that the sole basis of a negative opinion cannot be the fact that the Veteran’s post-service treatment records are silent as to any complaints or treatment of a low back disorder for many years following separation of service. Thereafter, in October 2020, the Veteran was afforded a VA examination, at which time the examiner opined that his low back disorder was less likely than not related to his military service, to include his documented complaints therein. In this regard, he noted that the Veteran was seen for an acute episode of back pain while on active duty in 1958 and, following his discharge in 1959 and 1964, he was not treated for such condition until 2007, which is a period of 39 years after his most recent discharge. Thus, the examiner found that such fact negated any continuity of symptomatology of the claimed disorder from the time of discharge to the present. Furthermore, he observed that there was no supporting evidence of a chronic condition while the Veteran was on active duty or after his discharge. Rather, the evidence showed that his back complaints resolved while on active duty and there was no evidence to support a permanent residual or chronic disabling condition as shown by STRs or post-service treatment records. Therefore, the examiner concluded that the Veteran’s current back disorder had no relation to the acute back pain he experienced during service. However, the Board finds that, as the October 2020 VA examiner’s opinion did not substantially comply with the September 2020 Remand directives, another remand is necessary in order to obtain an addendum opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, he did not address whether the Veteran’s low back disorder is related to his in-service duties requiring lifting and/or his documented treatment for sacroiliac strain in February 1962. Furthermore, while he found that the record was negative for any complaints or treatment for back pain until 2007, he did not consider the Veteran’s report of receipt of chiropractic care from 1964 to 1965 (the records of which are unavailable); his treatment records noting nagging back pain in October 2000; an October 2005 X-ray showing degenerative changes of the thoracic spine; or the Veteran’s report of the onset of back pain in service with a continuity of symptomatology thereafter as directed in the Remand. Thus, a remand is necessary in order to obtain an addendum opinion addressing such matters. The Board also notes that, in his December 2020 Informal Hearing Presentation, the Veteran’s representative challenged the October 2020 VA examiner’s competence as his medical qualifications were not documented in the examination report. Specifically, he requested that VA provide the examiner’s curriculum vitae and other information about his qualifications. In this regard, once a claimant has raised a challenge to the competency of a VA examiner, VA must satisfy its burden of persuasion as to the examiner’s qualifications and respond to the challenge by providing information about the qualifications of a medical examiner to the veteran. Francway v. Wilkie, 940 F.3d 1304, 1307 (Fed. Cir. 2019). Therefore, the Board finds that, on remand, VA should obtain copy of the curriculum vitae, resume, or other documentation detailing the qualifications of the October 2020 VA examiner, and provide such to the Veteran. The matter is REMANDED for the following actions: 1. Return the record, to include a copy of this Remand, to the VA examiner who conducted the October 2020 examination. If he is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. Following a full review of the record, the examiner should address the following inquiries: (A) For EACH diagnosed low back disorder, identified as history of chiropractic subluxation of the spine, multi-level degenerative disc disease, and multi-level degenerative joint disease of the facet joints, the examiner should opine whether or not it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorder had its onset in, or is otherwise related to, the Veteran’s military service, to include as a result of his in-service duties requiring lifting, and/or his documented treatment for back strain in August 1958 and sacroiliac strain in February 1962. (B) If arthritis is diagnosed, the examiner should indicate whether such manifested within one year of the Veteran’s separation from service in June 1959, i.e., by June 1960, or December 1964, i.e., by December 1965. If so, please describe the manifestations. In offering such opinions, the examiner should consider and address the Veteran’s report of receipt of chiropractic care from 1964 to 1965 (the records of which are unavailable); his treatment records noting nagging back pain in October 2000; an October 2005 X-ray showing degenerative changes of the thoracic spine; a September 2014 X-ray showing multi-level degenerative disc disease; and a January 2015 MRI showing degenerative disc changes with facet arthropathy in the lumbar spine. In offering such opinions, the examiner should consider the Veteran’s report of the onset of back pain in service with a continuity of symptomatology thereafter. In rendering his or her opinion, the examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran’s post-service treatment records are silent as to any complaints or treatment of a low back disorder for many years following separation of service. A rationale for any opinion offered should be provided. 2. Obtain a copy of the curriculum vitae, resume, or other documentation detailing the qualifications of the October 2020 VA examiner (which may be redacted as deemed warranted). Upon receipt of such, associate it with the record and provide the Veteran and his representative a copy thereof. If the requested information is not obtainable, the Veteran and his representative should be notified and the reasons for such should be documented in the record. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Waite 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.