Citation Nr: 21003077 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 14-42 566 DATE: January 19, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from October 2003 to October 2008. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision. In November 2017 a videoconference hearing was held before the undersigned; a transcript is in the record. In April 2018 and August 2019, the case was remanded for further development. [The issues of service connection for insomnia and headaches were also on appeal. A September 2020 rating decision granted service connection for insomnia, rated 50 percent, and headaches, rated 30 percent, effective August 1, 2011. Accordingly, those issues are no longer on appeal before the Board.] 1. Entitlement to service connection for a low back disability is remanded. On July 2018 VA back examination, the examiner opined that it was less likely than not that the Veteran’s low back disability was related to his service. She explained that his service treatment records (STRs) were silent for complaints or treatment for, or a diagnosis of, a low back disability during service. She noted that he marked “NO” on his July 2008 service separation examination in reference to whether or not he had recurrent back pain or any back problem. She indicated that the low back arthritis that his chiropractor suggested was present, was not confirmed by August 2010 X-rays. The examiner explained that she completely agreed with the March 2012 examiner’s opinion that the Veteran’s “current lower back condition is not related to service.” However, the opinion is incomplete and inadequate. The examiner was to identify (diagnose) each low back disability entity found or shown by the record during the pendency of the instant claim and identify the likely etiology for each low disability entity diagnosed. She diagnosed low back strain, but did identify the etiology for that diagnosed disability. The examiner was also to discuss the August 2010 and March 2012 VA opinions and the May and December 2011 private letters (which refer to disc degeneration at L5-S1) regarding the nature and etiology of the back disability and express agreement or disagreement with the opinions. She noted that August 2010 X-rays did not confirm low back arthritis. Notably, there were no X-rays to confirm if he currently (some 8 years since 2010) had low back arthritis, and such X-rays were not sought. X-rays in August 2010 would not exclude the possibly of arthritis being present 1 year, 2 years, or 8 years later. Although the examiner agreed with the March 2012 opinion that a low back disability was not related to the Veteran’s service, there was no expression of agreement or disagreement with the conclusion that the low back disability was congenital. Consequently, the opinion was incomplete (less than complaint with what had been sought), and in August 2019 the Board remanded the matter for an examination to obtain a fully adequate medical advisory opinion in the matter. On January 2020 examination pursuant to the August 2019 remand, the examining VA staff physician noted that the Veteran’s separation exam was silent for back problems, and that his back complaints started after a 2010 motor vehicle accident. She opined that the etiology of the Veteran’s lumbar strain, was muscle strain or contraction/spasm, which could be acute or chronic. It was noted that X-rays did not show degenerative joint disease (DJD) or disc disease, and although a disc problem was previously mentioned, it could be that he had an inflammation which resolved, as there was no current evidence of such problem. Further, there was no evidence that the condition was congenital. However, the examiner did not (as was requested) specifically comment on (express agreement or disagreement, including rationale) the opinions offered by the August 2010 and March 2012 VA examiners and in the May and December 2011 private letters (referring to disc degeneration at L5-S1). The examiner also did not acknowledge the Veteran’s lay accounts regarding postservice treatment. The Board finds the examiner’s opinion inadequate because it is less than substantially compliant with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, an addendum medical advisory opinion is necessary. The matter is REMANDED for the following: 1. Explaining that the records sought are critical to a proper assessment of his claim, again ask the Veteran to identify the provider(s) of all additional (records of which are not already associated with the record) evaluations or treatment he received for his low back disability, (to specifically include April and May 2010 treatment at Liringis Chiropractic) and to provide the releases necessary for VA to secure complete clinical records of all such private evaluations and treatment. Secure for the record complete clinical records of the evaluations and treatment from all providers identified. If any records sought are unavailable, the reason must be explained for the record, and the Veteran must be so notified. Specifically, secure for the record complete clinical records of all (updated to the present) VA evaluations and treatment the Veteran has received for his low back since April 2020. 2. When the development sought above is completed, arrange for the Veteran’s claims file to be returned to the January 2020 VA examiner for review and an addendum, fully adequate, clarifying medical advisory opinion in this matter. [If that provider is unavailable or unable to provide the opinion sought, arrange for the record to be forwarded to another appropriate clinician (in orthopedics) for review and the addendum opinion sought. The consulting provider should: (a) Identify (by diagnosis) each low back disability entity shown by the record during the pendency of the claim. (b) Identify the likely etiology for each low back disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that it began in (or is otherwise etiologically related to) the Veteran’s military service/reported injury therein? (c) If a diagnosed low back disability is found to be unrelated to service, identify the etiology for the disability that is considered to be more likely and explain, why that is so. (d) Specifically comment on (express agreement or disagreement with, including rationale) the opinions by the August 2010 and March 2012 VA examiners and in the May 16, 2011 and December 12, 2011 letters from private providers (Liringis Chiropractic) regarding the nature and etiology of the back disability. All opinions must include rationale, and consideration of the Veteran’s lay accounts of postservice treatment). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Fabian Lokenauth, 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.