Citation Nr: 21002121
Decision Date: 01/12/21	Archive Date: 01/12/21

DOCKET NO. 16-46 448
DATE: January 12, 2021

REMANDED

Entitlement to service connection for degenerative disc disease of the lumbar spine is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from January 1958 to December 1960.  

This appeal comes before the Board of Veterans’ Appeals (Board) from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  

In May 2019, the Veteran testified before the undersigned Veterans Law Judge.  A transcript of the hearing is available in the record.

Entitlement to service connection for degenerative disc disease of the lumbar spine is remanded.

This matter has previously been before the Board.  Most recently, in August 2020, the Board remanded for an addendum medical opinion to address the etiology of the Veteran’s degenerative disc disease of his lumbar spine.  The examiner was instructed that for purposes of the opinion, the examiner must consider the history provided by the Veteran regarding a parachute accident in service, and accept for examination purposes that the incident did occur.  A preliminary review of the evidence of record shows that the most recent VA examination in November 2020 did not address the Veteran’s contentions.  As the Board’s remand instructions were not substantially complied with, further remand is necessary.  Stegall v. West, 11 Vet. App. 268 (1998).

The matters are REMANDED for the following action:

1. Arrange for an addendum medical opinion to address the Veteran’s lay contentions regarding an un-documented parachute accident during military service.  The examiner should review the Veteran’s complete claim file and provide an opinion answering the following questions:

(a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s present lumbar condition was incurred in or aggravated by his military service, specifically from a parachuting accident during his first parachute jump? 

The examiner is instructed to accept for purposes of the examination that the described parachute incident did occur.  

The examiner’s attention is invited to the Veteran’s brother’s lay statement in 1991 that when the Veteran left the Army in 1960, he experienced back pain (see March 1991 Buddy / Lay Statement).

The examiner is advised that previous medical opinions in the record are insufficient, because they did not directly address the Veteran’s lay contention that he suffered an un-documented lower back injury during his first parachute jump in July 1958, when he landed on a fence (see May 2019 Hearing Transcript).  The Veteran has argued this accident caused his degenerative lumbar condition.  The examiner’s rationale MUST directly address this contention.  The examiner is advised that the absence of service treatment records cannot be the sole basis upon which a negative nexus opinion is based.

The examiner need not personally examine the Veteran again unless the examiner deems such in-person examination necessary.

 

K. J. ALIBRANDO

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. Hermsdorfer, 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.