Citation Nr: 21004649 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-06 423 DATE: January 27, 2021 REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2000 to December 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in April 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In August 2019 and October 2020, this matter was remanded for additional development and it now returns for further appellate review. Entitlement to service connection for a lumbar spine disorder. As noted in the prior remands, the Veteran claims that her current lumbar spine disorder is related to her military service, to include as due to rigorous training, to include 5-mile hikes with backpacks weighing anywhere from 70 to 112 pounds, and carrying heavy equipment, an August 2001 back injury, and/or an October 2002 complaint of back pain. Further, in August 2019, the Board found that, in light of the Veteran’s in-service complaints of low back pain, to include as documented in August 2001 and October 2002 service treatment records (STRs), her reports of a continuity of back symptomatology, and a current diagnosis of a lumbar spine disorder, characterized as lumbar degenerative disc disease with spinal stenosis in July 2013, a remand was warranted in order to afford the Veteran a VA examination so as to determine the nature and etiology of her lumbar spine disorder. However, in the October 2020 Remand, the Board found that, as the November 2019 VA opinion subsequently obtained was based on an inaccurate factual premise and did not address all relevant inquiries, another addendum opinion was necessary to decide the claim. Thus, pursuant to the October 2020 Board Remand, an addendum opinion was obtained later that same month from the November 2019 VA examiner. At such time, he opined that the Veteran’s lumbar spine disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. However, in support for such opinion, he simply reiterated the rationale for the November 2019 opinion. Specifically, the examiner reported that there was no documentation of back pain on the Veteran’s November 2002 separation examination; rather, it appeared that she developed lumbar pain post-service. Here, he explained that such was first reported in February 2007 when she was prescribed chiropractor adjustments once a week for eight weeks. The examiner further noted that the Veteran had an X-ray of her spine completed in January 2007, which was normal. Thereafter, she continued to experience back pain, which was evidenced by a February 2016 treatment record where she reported having undergone nerve blocks; however, a contemporaneous X-ray was normal. Additionally, the October 2020 VA examiner indicated that 2013 and 2015 MRIs revealed degenerative changes, and the Veteran’s mildly stenotic syndrome/spinal canal at L4-L5 was noted to be likely due to a congenitally narrow bony canal stenosis as evidenced by the May 2015 MRI. He further stated that the MRI findings between 2013 and 2015 were unchanged, and the Veteran’s spinal stenosis would neither improve nor deteriorate. In this regard, the examiner determined that it was unlikely such congenital disorder contributed or was impacted while she was in service as her STRs were silent for any back symptoms, and she started to experience pain in her back after she left service. In conclusion, he stated that the Veteran had pre-existing spinal stenosis when she joined the military service, did not have any back complaints documented in her STRs, her back symptoms started five years later when she started to have chiropractic adjustments, and it was more likely that she developed back pain as part of age-related changes. However, as the Veteran’s STRs include a complaint of low back pain after passing out and falling backwards in August 2001 and a report of lower back pain in October 2002, an addendum opinion was sought in November 2020. In this regard, the November 2019/October 2020 VA examiner noted that, while the Veteran had “some lower back pain” after she passed out in August 2001, no injuries were noted and there was no record of persistent back pain on her separation examination. Rather, he found that her persistent back pain started well after service. Thus, the examiner concluded that, while he considered the Veteran’s lay statements, he could not say that her current back disorder is related to her military service without supportive objective evidence. However, the examiner did not consider whether the Veteran’s lumbar spine disorder was related to her rigorous training, to include 5 mile hikes with backpacks weighing anywhere fro 70 to 112 pounds, and carrying heavy equipment, or her complaint of back pain in October 2002, as requested in the Board’s Remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Furthermore, while the examiner again noted that the Veteran’s spinal stenosis was congenital in nature, he did not specifically address whether such is a defect or disease. In this regard, he indicated that such would not improve or deteriorate, which is indicative of a defect, but also considered whether such increased in severity, which is indicative of a disease. Consequently, the Board finds that another remand is necessary in order to ensure compliance with prior Remand orders and obtain another addendum opinion. The matter is REMANDED for the following action: Forward the record, to include a copy of this Remand, to an appropriate examiner other than the November 2019/October 2020/November 2020 VA examiner, if possible, to obtain an addendum opinion regarding the etiology of the Veteran’s lumbar spine disorder. Following a review of the record, the examiner should address the following inquiries: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s diagnosed lumbar spine disorders of lumbosacral strain and degenerative joint disease had their onset during, or are otherwise related to, her military service, to include as due to rigorous training, to include 5-mile hikes with backpacks weighing anywhere from 70 to 112 pounds, and carrying heavy equipment, an August 2001 back injury, and/or an October 2002 complaint of back pain? (B) State whether the Veteran’s spinal stenosis constitutes a congenital or developmental defect or a disease (per VAOPGCPREC 82-90, in general, a congenital abnormality that is subject to improvement or deterioration is considered a disease). (i) If the Veteran’s spinal stenosis is considered a defect, was there additional disability due to disease or injury superimposed upon such defect during her military service? If so, please identify the additional disability. (ii) If the Veteran’s spinal stenosis is considered a disease, did such clearly and unmistakably pre-existed her entrance to service? (a) If so, is there clear and unmistakable evidence that the pre-existing spine stenosis did not undergo an increase in the underlying pathology during service, i.e., was not aggravated? If there was an increase in the severity of the Veteran’s spinal stenosis, was such increase clearly and unmistakably due to the natural progress of the disease? (b) If not, is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s spinal stenosis had its onset in, or is otherwise related to, her military service, to include as due to rigorous training, to include 5-mile hikes with backpacks weighing anywhere from 70 to 112 pounds, and carrying heavy equipment, an August 2001 back injury, and/or an October 2002 complaint of back pain? In offering such opinions, the examiner must consider and discuss the lay statements of record regarding the onset of the Veteran’s lumbar spine disorder and the continuity of symptomatology of such disorder. Please be advised that a lack of post-service treatment records demonstrating a continuity of care cannot form the sole basis of a negative opinion. Thus, if the examiner rejects the Veteran’s lay statements as to onset and/or a continuity of symptomatology, he or she should provide a reason for doing so beyond the mere lack of corroborating records. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Koria B. Stanton, 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.