Citation Nr: 21063359 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 16-38 413 DATE: October 14, 2021 REMANDED Entitlement to service connection for a low back disability, to include lumbar spine degenerative disc disease, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from October 2003 to December 2007. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018 and May 2021, the Board remanded the case for additional evidentiary development. Entitlement to service connection for a low back disability, to include lumbar spine degenerative disc disease, is remanded. The Veteran seeks service connection on a direct and secondary basis for a low back disability, to include lumbar spine degenerative disc disease. The Veteran contends that his lumbar spine disability is a result of carrying heavy 30/50 pound gear while marching, running, and going on patrol during active service. See VA Forms 21-4138 (September 2015); VA Form 9 (August 2016). On his August 2016 VA Form 9, the Veteran reported that he began having lower back pain again soon after separation but "dealt with the pain until 2013" when he was diagnosed with degenerative disc disease at the VA. Service treatment records show that the Veteran sought treatment for low back pain in August 2006 after lifting weights in a gym. Alternatively, as to service connection on a secondary basis, the Veteran contends that his service-connected foot condition causes him to overcompensate and results in discomfort of the back. See VA Forms 21-4138 (June 2012) and (January 2013). Both the 2018 and 2021 Board decisions remanded for a medical opinion on the etiology of the Veteran's back disability. An August 2019 VA medical opinion addressed service connection on a direct basis. It reflects that the Veteran's current low back disability is less likely than not related to his August 2006 lifting injury or to the rigorous nature of his duties as a Marine. The Board finds that this opinion is inadequate for adjudicative purposes. The opinion, while noting that the Veteran denied any back problems on his November 2007 service separation examination and had normal clinical evaluation of the spine at that time, indicated that the Veteran did not have any continued or chronic treatment for back pain until August 2013, which is incorrect. The opinion does not reflect consideration of the Veteran's lay statements that he began having back pain shortly after separation from service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a Veteran's reports of in-service injury and instead relied on the absence of evidence in a Veteran's service treatment records to provide a negative opinion). See also, McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate."). Additionally, the opinion relied on medical literature without discussing specific facts vis-à-vis the Veteran. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018). Specifically, it stated that "[m]edical literature does not support the theory that DDD [degenerative disc disease] is caused by marching, running, or combat patrols." However, incongruently, the opinion also noted that several factors can cause discs to degenerate, including daily activities and sports, which cause tears in the outer core of the disc; that traumatic injury can cause an annular tear; and that this is typically seen in high-impact sports such as gymnastics and football and in people with strenuous occupations. Importantly here, the Veteran had a strenuous occupation during his active duty, reporting that he routinely carried heavy 30 or 50 pound gear while marching, running, and going on patrol, which is not reflected in the discussion of the medical literature as it pertains to this Veteran. Stated differently, the opinion is inadequate because the conclusion that the Veteran's lumbar degenerative disc disease was not caused by his physical activities in service appears to be contradicted by the opinion's description of how degenerative changes in the spine develop. Clarification is necessary. Next, a negative June 2021 VA medical opinion addressed the question of secondary service connection. As to the causation prong, the opinion provided that: Medical and Orthopeadic literature does not support the theory that one joint dysfunction can cause a joint dysfunction in a completely seperate [sic] joint, especially without any significant alteration in gait or leg length inequality. Current condition more likely the normal result of aging, less likely than not proximately due to or the result of service connected left foot plantar fasciitis and contusion of the left calcaneus condition. As to the aggravation prong of secondary service connection, the opinion provided that: Medical treatment records do not support any aggravation of back condition caused by service connected left foot condition. In addition medical and Orthopeadic literature does not support the theory that one joint dysfunction can cause a joint dysfunction in a completely separate [sic] joint. Less likely than not aggravated by service connected condition. The 2021 VA medical opinion is inadequate because again it relied on medical literature without discussing specific facts vis-à-vis the Veteran; and provides no explanation to support the conclusion that the Veteran's condition is more likely related to normal aging. It is also noted that a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21Vet. App.102, 124-25. A "medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22Vet. App.295, 301 (2008). To ensure that VA has met its duty to assist, remand is necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that it is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from July 2020 to the Present. 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's lumbar spine disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with any lumbar spine disability. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): An adequate medical opinion may not be predicated solely on the absence of literature supporting causation or aggravation without discussing those facts specific to this Veteran. The clinician must opine on: Direct Service Connection (a) Whether any lumbar spine disability at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease. (b) For arthritis of the lumbar spine, opine on whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. Explain. Consider and expressly address (1) the Veteran's theory that his current disability stems from his documented August 2006 weight-lifting injury in service and/or his routinely carried heavy 30 or 50 pound gear while marching, running, and going on patrol; (2) the Veteran's report that he began having lower back pain again soon after separation but "dealt with the pain until 2013" when he was diagnosed with degenerative disc disease at the VA. Explain. Secondary Service Connection (c) Whether any lumbar spine disability is at least as likely as not (1) proximately due to service-connected left plantar fasciitis with calcaneal spur and/or left calcaneus disability, or (2) aggravated beyond its natural progression by service-connected left plantar fasciitis with calcaneal spur and/or left calcaneus disability. Provide a rationale that deals with causation and aggravation as independent concepts. Explain. 3. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.D. Anderson, 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.