Citation Nr: 21062885 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 13-21 346 DATE: October 12, 2021 REMANDED Entitlement to service connection for a back disorder, to include as secondary to service-connected bilateral knee and foot disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1973 to May 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2012 by a Department of Veterans Affairs (VA) Regional Office. In April 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At the time, the undersigned held the record open for 60 days for the submission of additional evidence, which was further extended to September 25, 2021, by way of a July 2021 letter; however, no additional evidence has been received to date. As an initial matter, the Board notes that, in an October 2017 decision, the Board declined to assume jurisdiction over the Veteran's claim for service connection for a back disorder and instead referred an application to reopen such claim to the Agency of Original Jurisdiction (AOJ) for appropriate action. However, in a July 2020 Joint Motion for Partial Remand (JMPR), the Veteran and the Secretary of VA (the parties) vacated the Board's referral of such claim and remanded the matter of whether the Veteran had effectively withdrawn his claim for service connection for a back disorder for adjudication. In this regard, the parties found that the Board provided an inadequate statement of reasons or bases for finding that the Veteran had withdrawn his claim for service connection for a back disorder. Specifically, it was observed that the Veteran filed a notice of disagreement as to the July 2012 rating decision that denied service connection for such disorder in August 2012, which led to the issuance of a statement of the case in July 2013. Later that month, the Veteran perfected his appeal of such claim by filing a timely substantive appeal (VA Form 9). However, at a December 2015 Board hearing, the presiding Veterans Law Judge informed the Veteran that the absence of any notation as to the claim for service connection for a back disorder on a February 2015 substantive appeal (VA Form 9) regarding a separate claim was an implied withdrawal of his claim for service connection for a back disorder. However, as noted by the parties, VA regulations then and currently in effect include specific requirements that must be met in order for a withdrawal to be effective. 38 C.F.R. §§ 20.205 (2018), 19.55 (2021); Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018), DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); Hembree v. Wilkie, 33 Vet. App. 1 (2020). In the instant case, the Board finds that the exclusion of the claim for service connection for a back disorder on the February 2015 substantive appeal (VA Form 9) was not an explicit withdrawal of such claim as it did not include a statement indicating that the appeal was withdrawn. Furthermore, the discussion of such matter at the December 2015 Board hearing did not include an explicit and unambiguous statement by the Veteran withdrawing his claim for service connection for a back disorder with a full understanding of the consequences of a withdrawal. Rather, at such time, it was noted that the Veteran specifically indicated that he did not intend to withdraw such claim. Therefore, the Board finds that the criteria for an effective withdrawal have not been met. Consequently, the Board finds that it properly has jurisdiction over the claim for service connection for a back disorder and such matter will be addressed on the merits herein. Entitlement to service connection for a back disorder, to include as secondary to service-connected bilateral knee and foot disabilities. The Veteran contends that his current back disorder is the result of an injury incurred in service or, in the alternative, is caused or aggravated by his service-connected bilateral knee and foot disabilities. In regard to the former theory of entitlement, the Veteran indicated that, while parachuting with the 82nd Airborne Division, he sustained a back injury during a hard landing in 1973 or 1974 and has experienced back pain since such time. He further indicated seeking treatment from time to time, but the records were unavailable. As pertinent to the latter theory of entitlement the Veteran reported that, as a result of his bilateral knee and foot disabilities, he has put more pressure on his back. As an initial matter, the Board notes that the record reflects that the Veteran has a current diagnosis of degenerative arthritis of the lumbar spine. Additionally, his service treatment records (STRs) reflect that complaints of low back pain in January 1974. At such time, it was noted that he had duty involving stooping and lifting, and subsequently developed low back pain. He was diagnosed with a mild strain. Further, the Veteran is the receipt of the Parachute Badge and is currently service-connected for left and right knee patellofemoral syndrome and left and right foot injuries. However, in May 2011, a VA examiner opined that the Veteran's lumbar spine disorder was less likely than not caused by or the result of his active military service. In this regard, he indicated that the Veteran had a single episode of mechanical low back pain in service without any chronicity or recurrences and, thus, such was insufficient to establish a connection to a chronic low back syndrome 30 years after service. Rather, the examiner found that the Veteran's current lumbar spine disorder is a result of normal aging and degeneration of the lumbar spine. Additionally, in May 2013, another VA examiner 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, or caused by and/or worsened by an already service-connected disability. In support thereof, she noted that he had a one time complaint of what appeared to be a low back muscle strain in service that appeared to be treated successfully and resolved. The examiner further stated that the appearance of low back pain, which the Veteran reported as having occurred in the prior five years, at a 2006 VA examination indicates a more recent onset than the many years earlier in the military. In this regard, she reported that the Veteran's current degenerative joint disease of the lumbar spine was more likely than not related to aging and post-service activities rather than to parachute jumping or remote activities. However, neither the May 2011 nor the May 2013 VA examiner addressed the Veteran's lay statements of experiencing ongoing back pain since service, and the latter examiner did not provide a rationale for her opinion that his back disorder was not caused by and/or worsened by an already service-connected disability. Thus, the Board finds that a remand is necessary in order to obtain an addendum opinion addressing such matters. The matter is REMANDED for the following action: Forward the record, to include a copy of this remand, to an appropriate VA examiner to provide an opinion addressing the etiology of the Veteran's back disorder. Following a review of the record, the examiner should address the below inquiries: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's back disorder, diagnosed as degenerative arthritis of the lumbar spine, had its onset in, or is otherwise related to, his military service, to include as a result of his parachuting duties and/or as due to the diagnosed mild strain in January 1974 as a result of stooping and lifting? In offering such opinion, the examiner must consider the Veteran's lay statements regarding a continuity of back symptomatology since service, to include his report of seeking treatment from time to time, but the records are unavailable. The examiner is further advised that a lack of medical records demonstrating a continuity of care after service cannot form the sole basis of a negative opinion. (B) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's back disorder, diagnosed as degenerative arthritis of the lumbar spine, is caused or aggravated by his service-connected bilateral knee and foot disabilities, to include as a result of putting pressure on his back. For any aggravation found, the examiner should state, to the best of their ability, the baseline symptomatology, and the amount, quantified, if possible, of aggravation beyond the baseline symptomatology. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Waite 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.