Citation Nr: 21063593 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 03-32 330 DATE: October 14, 2021 REMANDED Entitlement to service connection for thoracolumbar spine disability, to include osteoarthritis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from May to July 1979. This appeal has a lengthy procedural history, including multiple Board remands with the most recent in May 2021, Board decisions in October 2010, November 2013 and May 2015, and grants of Joint Motions for Remand and Partial Remand by the Court of Appeals for Veterans Claims (Court) in May 2011, November 2014 and April 2016. Notably, in the Joint Motion for Partial Remand, which was the subject of the November 2014 Court Order, the parties agreed that the issue of entitlement to service connection for degenerative disc disease of the lumbar spine should not be disturbed on remand. Thus, the appeal before the Board includes all potential diagnoses other than degenerative disc disease of the lumbar spine. 1. Entitlement to service connection for thoracolumbar spine disability, to include osteoarthritis, is remanded. Upon review of the evidence of record, the Board finds remand is warrant for additional development and an addendum medical opinion. Consistent with the May 2021 remand directives, the Veteran attended a VA thoracolumbar spine examination in August 2021. The examiner opined osteoarthritis (OA) is less likely than not related to an in-service 1979 lower back injury in which the Veteran was kicked in the back. In support of this, the examiner explained, "Degenerative disease of the lumbar spine is known to have multifactorial causes including being natural part of aging. OA is most often atraumatic in nature, which means there was no specific trauma which caused the condition. OA usually occurs in individuals over the age of 50. OA could result from a wide variety of conditions such as history of faulty posture, occupational tasks, prolonged immobilization, obesity, or repetitive mircotrauma." The Board finds this rationale to be too general. "The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (finding an opinion inadequate because the examiner did not provide any rationale for the opinion that was specific to the appellant's particular medical condition and circumstances). Here the examiner discussed osteoarthritis generally, but the rationale lacked specific facts relating to the Veteran. Notably, the examiner stated, "OA could result from a wide variety of conditions", but did not address whether the type of injury the Veteran sustained in service is one of those "wide variety of conditions". Additionally, as part of May 2021 remand, the Board sought an opinion on "whether any current low back disability (including the May 2009 examiner's diagnosis of osteoarthritis of the lumbar spine but excluding degenerative disc disease) is at least as likely as not related to the in-service incident of being kicked in the back with diagnoses of back strain and psychophysiologic musculoskeletal disorder, left lower back, chronic." See May 2021 remand, page 3 (emphasis added). The August 2021 examiner listed several diagnoses, in addition to degenerative arthritis, but the opinion provided did not address these additional potential thoracolumbar spine disabilities. This does not constitute substantial compliance with the Board's remand directive. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Finally, in order to potentially challenge the examiner's competency, the Veteran's representative recently requested a copy of the August 2021 examiner's curriculum vitae. See representative's September 2021 letter. "Once the request is made for information as to the competency of the examiner, the veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. This is mandated by the VA's duty to assist." Francway v. Wilkie, 940 F.3d 1304, 1309 (Fed. Circ. 2019). In light of the above, remand is warranted to obtain additional medical opinions and to provide the Veteran and his representative the August 2021 examiner's curriculum vitae. The matters are REMANDED for the following action: 1. Obtain addendum opinions from the August 2021 examiner or other appropriate professional. The examiner must review the claims file. The examiner is asked to provide a response to the following: Identify all thoracolumbar spine disabilities the Veteran has or has had since he filed his claim (March 2003), even if those disabilities have resolved. For each identified disability, is the disability at least as likely as not related to service, including the in-service injury of being kicked in the back. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. 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 a current disability, this should be noted. Provide rationale to support the opinions. The examiner should address the lay statements and the in-service diagnosis of chronic left lower back psychophysiologic musculoskeletal disorder. See June 25, 1979 service treatment record (Clinical Record Cover Sheet). 2. Obtain a copy of the curriculum vitae (CV) for the August 2021 VA examiner. Upon receipt of the CV, associate it with the Veteran's file, and provide a copy to the Veteran and his representative. If the requested CV is unattainable, then the Veteran and his representative should be notified. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gregory T. Shannon, 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.