Citation Nr: 21003612 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 14-36 648 DATE: January 22, 2021 REMANDED Entitlement to service connection for a back disorder is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Army from June 1980 to June 1984. The record also reflects service in the Maryland National Guard from November 1984 to March 1990, and from November 1993 to December 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision. The Veteran and his representative testified before the undersigned Veterans Law Judge at an October 2018 Board hearing. A transcript of the hearing has been associated with the claims file. The Veteran is seeking service connection for a back disability that he contends is related to back injuries incurred during service. Specifically, he attributes his back pain to his active service duties as a heavy vehicle mechanic carrying toolboxes, truck parts, and jumping down from vehicles onto hard pavement. He also contends that his back pain is due to physical training and riding in the back of vehicles on uneven surfaces during his United States Army Reserve and Maryland National Guard service. See January 2010 Veteran Correspondence; October 2010 Notice of Disagreement (NOD); September 2014 Form 9; October 2018 Board Videoconference. The Board finds a remand is required in this case as no examination of record adequately addresses the determinative issue of causation. As an initial matter, the record reflects current diagnoses of degenerative disk disease (DDD) of the lumbar spine and degenerative joint disease (DJD) of the lumbar spine. See VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ). Here, the Veteran submitted a private medical opinion dated August 2008 from Dr. Shutta, his private treating physician, finding a positive medical nexus between the Veteran’s military service and his back pain. See January 2009 Private Medical Treatment Records. Dr. Shutta noted that he had been treating the Veteran since 1986 for back pain, which had continued since his time in the Reserves and National Guard. Conversely, in the September 2020 VA Back (Thoracolumbar Spine) Conditions DBQ, the examiner opined that “[t]hat [there] was no evidence of a chronic back issue while on active duty.” The examiner discussed the MRI findings from July 2001, October 2004, and November 2005, which also diagnosed DDD of the lumbar spine, and indicated that they occurred while he was in the National Guard. See September 2020 VA Back (Thoracolumbar Spine) Conditions DBQ. The Board find this opinion inadequate for rating purposes. Specifically, the VA examiner failed to address the Veteran’s lay statements with respect to chronicity of symptomatology throughout other periods of qualifying service and, thus, inadequate for decision-making purposes. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Further, the VA examiner did not consider the private treatment record from Dr. Shutta noting chronic back pain since 1986, which was attributed to the Veteran’s military service. As such, an addendum opinion is required to adequately address the Veteran’s lay statements and the issue of etiology of the diagnosed back disorder. The matter is REMANDED for the following action: 1. If not already associated with the record, obtain and associate with the claims file any additional VA or private treatment records pertaining to the claim dating from September 2020 to the present. Any records obtained should be associated with the claims file. If no such records are available, this should be indicated in the claims file. 2. The Agency of Original Jurisdiction (AOJ) must obtain an addendum opinion from the September 2020 VA examiner, or other similarly situated medical professional, regarding the Veteran’s service connection claim for DDD and DJD of the lumbar spine. An in-person examination is not necessary unless the examiner determines that one must be conducted to address the questions below. The examiner is asked to specifically address the following: (a.) Identify any and all currently diagnosed back disorders. (b.) Whether it is at least as likely as not that any diagnosed back disorder is due to the Veteran’s military service, to include his diagnosed L5/S1 disc herniation that he received treatment for in 2001 and 2005 while in the Maryland National Guard. (i) The examiner MUST comment on the Veteran’s lay statements as to the cause of his in-service injuries and continuity of symptomatology during his active duty service, reserve duty with the Army, and after separation. (ii) The examiner should note that the Veteran is competent to state that he had back pain while in the service. (c) Comment on the private medical opinion of Dr. Shutta, who has treated the Veteran since 1986 and found a positive nexus between the Veteran’s current back pain dating from his active duty service in the United States Army. (d) If the VA examiner finds that the Veteran’s symptoms constitute back pain alone without an underlying diagnosis, the VA examiner is asked to determine if the Veteran’s symptoms of pain reach the level of functional impairment of earning capacity. • The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. • The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. • If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. • A complete rationale for all opinions offered must be provided. • THE EXAMINER SHOULD ADDRESS ANY AND ALL TREATISES OF RECORD. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE, CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David B. Scheirich, 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.