Citation Nr: 21000883 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-14 724 DATE: January 6, 2021 REMANDED Entitlement to service connection for lumbosacral strain with degenerative arthritis, status post lumbar surgery, is remanded. Entitlement to service connection for depression, to include as secondary to lumbosacral strain with degenerative arthritis, is remanded. REASONS FOR REMAND The Veteran had active duty service from October 1972 to October 1976. These matters come before the Board of Veterans’ Appeals (Board) from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In an October 2018 decision, the Board denied service connection for a lumbar spine disability and depression. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the Court granted a Joint Motion for Remand (JMR) filed by the parties to the appeal, thereby vacating the Board’s decision and remanding the matter for readjudication. In December 2019, the Board remanded these issues for development consistent with the terms of the JMR. Specifically, the Board instructed that outstanding VA and private treatment records should be obtained as well as Social Security Administration (SSA) records. Thereafter, the Veteran should be afforded a VA examination, and medical opinions addressing the nature and etiology of his lumbar spine disability should be obtained. The requested SSA records are associated with the Veteran’s claims file, and the Veteran was notified and provided an opportunity to identify and/or supply private treatment records, which went unanswered. Additional VA treatment records were added to the claims file, dated through October 2020, and the Veteran was afforded the requested VA examination for his back disability in February 2020. Upon review of the requested medical opinion, the RO requested a clarifying addendum opinion; opinions were received in July 2020 and October 2020, and the RO issued a Supplemental Statement of the Case (SSOC) in October 2020, addressing both issues. Unfortunately, as will be addressed below, the Board finds that the VA opinions are inadequate for purposes of deciding the Veteran’s claims on appeal, and another remand is necessary in order to ensure compliance with the Board’s December 2019 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for lumbosacral strain with degenerative arthritis, status post lumbar surgery, is remanded. The Veteran contends that his back disability is due to an injury sustained during active service. Specifically, the Veteran reports that he injured his back in a dirt bike accident sometime between April 1973 and December 1973. He indicates that he was seen at an emergency room after the accident and that his service discharge examination documents recurring mechanical back pain. The Veteran has also reported that he sprained his back in 2005 and was diagnosed with a herniated disc in 2011, indicating that he believed that his back was weakened by his in-service injury, making him more susceptible to the post-service injury. A Report of Medical History at service enlistment in September 1972 indicates that the Veteran had recurrent back pain from a prior back injury; examination revealed a normal spine evaluation at entrance. At service separation in June 1976, the Veteran reported recurrent back pain and a history of arthritis; his examination again showed a normal spine evaluation, although noting that the Veteran had recurrent back pain, referring to mechanical low back pain, which was treated with exercises and heat treatments. Service treatment records are otherwise silent for any complaints or treatment for his low back, and the RO’s attempt to obtain clinical records and active duty inpatient clinical records relating to a back injury from January 1973 to December 1973 returned a negative response. Private treatment records from June 2011 show the Veteran had complaints of pain radiating into his left leg, and the physician ordered an MRI of the lumbar spine. A June 2011 MRI showed lumbar spinal stenosis, disc herniation, degenerative spondylolisthesis and other degenerative changes. An August 2011 medical record notes that a private physician recommended proceeding with lumbar decompression and discectomy surgery in September 2011. An October 2011 MRI showed disc degeneration and trace spondylolisthesis. During an April 2014 VA thoracolumbar spine examination, the Veteran received a diagnosis of lumbosacral strain with degenerative arthritis of the spine, status post lumbar surgery in 2011. The Veteran reported a motorcycle incident in service that was not treated, and lower back pain and some lower extremity numbness were finally treated in 2011 by lumbar spine disc surgery. The examiner rendered a negative direct service connection opinion regarding the Veteran’s current back disability; however, the April 2014 VA examiner’s opinion was previously deemed inadequate because the examiner limited the opinion to whether there was in-service incurrence of a chronic condition. A February 2016 opinion from the Veteran’s treating chiropractor notes that the type of accident that the Veteran had when he was 18 possibly could and probably did cause the spinal problems that he experiences today. Notably, the provider’s reference to the Veteran’s age would suggest an injury sometime between November 1972 and November 1973. A statement from the Veteran, received in March 2016, notes that the Veteran experienced a motorcycle accident, after which he was treated in sick bay and subsequently went back to work as a crew chief. He reported that he went to sick bay many times for chronic back pain, always aggravated by heavy lifting or moving heavy equipment. The Veteran reported that every clinic visit for chronic back pain could be directly related to the trauma. After discharge, he continued working as a mechanic/technician and continued to have back problems. In 2011, he had a herniated disc between L-3 and L-4 and had to have surgery to correct the problem. He reported that he currently had degenerative disc disease, spondylolisthesis, spinal stenosis, and arthritis, all of which could be traced back to original injury. As noted above, in December 2019, the Board remanded the Veteran’s claims for a VA examination and medical opinions. Specifically, the Board instructed that an opinion should be obtained addressing whether a lumbar spine disability clearly and unmistakably pre-existed the Veteran’s entry into service. In this regard, the examiner was asked to comment on the significance, if any, of the September 1972 report of medical history wherein the Veteran reported a history of recurrent back pain. Additionally, the examiner was asked to offer an opinion as to whether it is at least as likely as not that the Veteran’s current lumbar spine disability was incurred in or is otherwise related to service, to include his in-service treatment for mechanical back pain and/or the in-service motorcycle accident he has described, specifically addressing the Veteran’s lay statements regarding continuity of back symptoms since service. The examiner was also asked to address the nexus opinion from the Veteran’s private chiropractor in February 2016, indicating that the Veteran’s in-service injury “could and probably did” cause his current disability. The Veteran was afforded the requested VA examination in February 2020. The examination provides diagnoses of lumbosacral strain and degenerative arthritis of the spine status post lumbar surgery. The Veteran reported that he injured his back in 1973 when he crashed his motorcycle. He reported that he had x-rays in the emergency room, revealing a hairline fracture of the low tailbone and was treated with Valium at the time. He indicated that he continued to have back pain, but nothing was addressed until 2011 when he learned that he had a herniated disc and spondyloschisis. The examiner opined that it was at least as likely as not that his claimed disability was incurred in or caused by the claimed in-service injury, event or illness, reasoning that, while it is subjectively reported that the Veteran had back pain, there is no clinical objective evidence that shows the Veteran had an abnormal back at entrance; therefore, it is as least as likely as not the Veteran’s back condition is due to or a result of the service. However, the Board finds that this opinion is not adequate because it lacks supporting rationale for the requested direct service connection opinion. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Moreover, to the extent that the rationale suggests that the Veteran did not have a pre-existing back disability at service entrance, the examiner did not opine as to whether a lumbar spine disability clearly and unmistakably pre-existed the Veteran’s entry into service as requested in the December 2019 Board remand. Stegall v. West, 11 Vet. App. 268 (1998). In July 2020, another addendum opinion was requested, and a September 2020 opinion notes review of the Veteran’s STRs, the Veteran’s lay report of his motorcycle accident and ongoing treatment and symptoms since, and post-service treatment records, including the February 2016 note from the Veteran’s treating chiropractor. Based upon this review, the examiner checked the box providing an opinion that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner, however, also noted that it is at least as likely as not that the Veteran’s current lumbar spine strain, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by the military. The examiner reasoned that the Veteran had “back pain on [his] enlistment exam[ination] from injury.” During the military, he was involved in a motorcycle accident which worsened his back pain, and he was treated for mechanical low back pain in the service; previous injuries and wear and tear of the spine leads to the development of degenerative disc disease, a worsening of his pre-existing back pain. Additionally, the examiner indicated that the Veteran notated back pain from a motorcycle accident in the service as did his chiropractor. The Board notes that it previously remanded the claim of entitlement to service connection for a lumbar spine disability for, in part, an opinion that complies with the standard of evidence required to rebut the presumption of soundness. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). An examiner was to ascertain whether a lumbar spine disability clearly and unmistakably pre-existed the Veteran’s entry into service. Here, it appears as though the VA examiner may have confused the Veteran’s self-reported medical history with the enlistment evaluation findings. Specifically, it was the Report of Medical History at enlistment in September 1972 that indicates that the Veteran had recurrent back pain from a prior back injury; examination revealed a normal spine evaluation at entrance. Thus, to the extent that the examiner found that the Veteran’s lumbar spine strain clearly and unmistakably existed prior to service based on back pain due to injury noted on his enlistment examination, the Board finds that this is based on an inaccurate factual premise. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely” (citations omitted)). Nevertheless, to the extent that the examiner based the opinion that the Veteran had a pre-existing back disability based solely on the Veteran’s self-report of back pain, the Board finds that this rationale is not sufficient to rebut the presumption of soundness. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Furthermore, although the July 2020 examiner also checked the box that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness, no rationale was provided for this opinion. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). An October 2020 addendum opinion indicates that the Veteran’s report of medical history and enlistment examination in September 1972 was negative for a pre-service back condition, and a report of medical history and separation examination in June 1976 document a normal back examination and no evidence for aggravation of a pre-service back condition. Medical record review did not reveal continuous ongoing medical treatment or aggravation of acute or chronic pre-service back condition during time of discharge from active military service to present day. Therefore, the examiner opined that the claimed pre-service back disability, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury event, or illness. However, this opinion is also inadequate because the examiner, while providing a negative aggravation opinion for a pre-existing back disorder, provided rationale indicating that the Veteran did not have a pre-existing back disability. Thus, the conclusion is inconsistent with the cited rationale, and the examiner did not provide a direct service connection opinion. In light of the deficiencies in each of these VA opinions, the Board finds that another remand is necessary to ensure compliance with the Board’s December 2019 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to service connection for depression, to include as secondary to lumbosacral strain with degenerative arthritis, is remanded. Because the Veteran has contended that his depression is secondary to his lumbar spine disability, the claims are inextricably intertwined. See, e.g., Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on an appellant’s claim for another benefit). Therefore, the depression claim will be remanded as well. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician addressing the nature and etiology of the Veteran’s lumbar spine disorder. The electronic claims file must be made accessible to the examiner. If an addendum opinion is not feasible, schedule the Veteran for a VA examination to determine the nature and etiology of his lumbar spine disorder. (a.) The examiner should opine as to whether it is clear and unmistakable (obvious and manifest) that a back disability existed prior to service. In commenting on the significance, if any, of the September 1972 report of medical history wherein the Veteran reported a history of recurrent back pain, the examiner is reminded that an opinion that the Veteran had a pre-existing back disability based solely on the Veteran’s reported back pain at service entrance will be considered deficient. (b.) If the examiner finds that the Veteran clearly and unmistakably had a back disability prior to service, then the examiner should opine as to whether it is also clear and unmistakable that any such disability was NOT aggravated during service beyond its natural progression. (c.) The examiner should also offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the low back disability had its onset in service or is otherwise etiologically related to service. The examiner must provide reasons for each opinion expressed with consideration given to all evidence of record, including the September 1972 report of medical history wherein the Veteran reported a history of recurrent back pain, his in-service treatment for mechanical back pain, his reported in-service motorcycle accident, his lay statements regarding continuity of back symptoms since service, and the nexus opinion from the Veteran’s private chiropractor in February 2016, indicating that the Veteran’s in-service injury “could and probably did” cause his current disability. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hite, 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.