Citation Nr: 21062926 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 14-33 031 DATE: October 12, 2021 REMANDED Entitlement to service connection for a lumbosacral spine disorder, to include degenerative disc disease (DDD), is remanded. REASONS FOR REMAND The Veteran had active military service from October 1989 to February 1994. This matter comes before the Board of Veterans' Appeals (Board) from an April 2012 rating decision. In September 2017, the Veteran and his spouse testified at a Board videoconference hearing at the Agency of Original Jurisdiction (AOJ) before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing is associated with the electronic claims file. In March 2018, the Board reopened and remanded this matter for additional development. The Board denied the service connection claim on appeal in an August 2020 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). The parties filed a Joint Motion for Remand (Joint Motion) in May 2021, which was granted by Order of the Court in June 2021. Accordingly, the appeal was remanded to the Board for further consideration. Entitlement to service connection for a lumbosacral spine disorder, including DDD, is remanded. In the May 2021 Joint Motion, the parties found that the Board erred when it failed to ensure that VA satisfied the duty to assist by obtaining an adequate medical opinion that addressed lay statements by the Veteran and his spouse regarding the continuity of his back pain. Pursuant to the May 2021 Joint Motion and based on the cumulative evidence of record, the Board finds that an additional VA medical opinion addressing the etiology of the Veteran's claimed lumbosacral spine disorder is necessary to effectively adjudicate the service connection claim on appeal. In addition, updated VA treatment records should be obtained and properly associated with the record. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following actions: 1. Obtain updated treatment records pertaining to the Veteran's claimed lumbosacral spine disorder from Beckley VAMC for the time period from April 2021 to the present and associate them with the record. 2. Thereafter, obtain a VA medical opinion to clarify the etiology of the Veteran's claimed lumbosacral spine disorder from an appropriate examiner, preferably an orthopedic specialist. If an opinion cannot be provided without an examination, one should be provided. The electronic claims file must be made available to the examiner, and the examiner must specify in the report that the file has been reviewed. The examiner should extensively review the evidence of record and furnish an opinion with a well-supported rationale for the following inquiry: For each diagnosed lumbosacral spine disorder of record, to include DDD, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's lumbosacral spine disorder began during service, manifested to a compensable degree as arthritis within one year of discharge, or was causally related to events during active service, including documented in-service spine complaints and treatment (specifically treatment in July and August 1993 for muscle strain after a back injury while lifting boxes of equipment as well as his complaints of occasional back pain on separation). In doing so, the examiner should discuss and reconcile the findings contained in the Veteran's service treatment records; post-service VA and private treatment records; the Veteran's lay statements; the September 2017 hearing testimony from the Veteran that he first hurt his back in 1993 and has had back problems ever since exiting service as well as from the Veteran's spouse responding "yes" to the question as to whether his back injury occurred on active duty and had gotten progressively worse since he was discharged; and the July 2008, October 2018, August 2019, September 2019 and November 2019 VA examination reports/medical opinions. In considering the lay assertions/hearing testimony of the Veteran and his spouse concerning continuity of lumbosacral spine symptoms since active service, the examiner must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible, but may be considered in conjunction with other factors in determining the credibility of lay evidence. The examiner should also discuss medically known or theoretical causes of any current lumbosacral spine disorder and describe how such a disorder generally presents or develops in most cases, in determining the likelihood that the current disorder is related to in-service events as opposed to some other cause. It should also be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology, such as back pain. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2020). (Continued on the next page) 3. After completing the above actions and any other necessary development, the claim on appeal must be readjudicated, taking into consideration all relevant evidence associated with the record since the March 2020 SSOC. If the benefit on appeal remains denied, a SSOC must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. D. Deane, 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.