Citation Nr: 21064108 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 14-16 723 DATE: October 19, 2021 REMANDED Entitlement to service connection for a lumbar spine disorder, to specifically include as due to Persian Gulf War service in the Southwest Asia theater of operations, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from February 1988 to Jun 1988, and then again from December 1990 to May 1991. The Veteran also has other service with the United States Air Force National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. On May 4, 2018, the Veteran's claim for a lumbar spine disorder was denied. This denial was vacated upon a Joint Motion for Partial Remand (JMPR) granted by the Court of Appeals for Veterans Claims (Court) on May 28, 2019. Thereafter, the Board remanded the claim on appeal (as well as other claims) on December 5, 2019 for further development pursuant to the JMPR. The Veteran was recently issued a Supplemental Statement of the Case (SSOC) as to this claim only on August 27, 2021. This is the only claim remaining on appeal from the December 2019 remand. The August 2021 rating decision granted service connection for sinusitis, sinus headaches and allergic rhinitis and assigned initial ratings for each disability. As the other claims were for service connection and granted in full, they are no longer in appellate status. See Rating Decision (Aug. 27, 2021); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). The Board accordingly reasserts jurisdiction. Entitlement to service connection for a lumbar spine disorder, to specifically include as due to Persian Gulf War service in the Southwest Asia theater of operations, is remanded. The Veteran generally asserts that his lumbar spine disorder is entitled to service connection, either due to a direct in-service occurrence or else as attributable to Persian Gulf War service in the Southwest Asia theater of operations. 38 U.S.C. §§ 1110, 1117, 1131; 38 C.F.R. §§ 3.303, 3.317. The claim was remanded in December 2019 for an adequate VA examination. See BVA Remand (Dec. 5, 2019). By virtue of having his claim remanded, the Veteran is entitled to substantial compliance with all previous remand directives, see Stegall v. West, 11 Vet. App. 268, 271 (1998); meanwhile, as examinations were ordered by the last remand to determine if the lumbar spine disorder is related to Persian Gulf War service or service otherwise, see McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006), these examinations and etiological opinions must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board concludes that the most recent etiological opinion is inadequate to decide the claim. The opinion stated, in sum and substance, that service treatment records contain no reference to any back condition, periodic physical exams fail to mention any complaints, and that there are no complaints of back pain in any civilian medical record until May 2007 for one month but thereafter not until November 2020. See VA Exam ( Dec. 14, 2020 ), at Question No. 17. The Board cannot reconcile this etiological opinion with a service treatment record dated June 6, 1988 confirming lower back pain for three days. See STR ( June 6, 1988 ). The December 2020 medical opinion is accordingly afforded little probative weight because it is based upon an inaccurate factual premise, see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Alternatively, to the extent that the Veteran is competent to state that he was reluctant to seek medical treatment and otherwise chose to work through his pain, the opinion is discounted as merely conclusory and reliant solely upon absence of evidence from the record. See, generally, Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis the Board can consider and weigh against contrary opinion"); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006); Jandreau v. Nicholson, 492 F.3d 1372 (2007). An addendum opinion is required. See Stegall v. West, supra. The claim is remanded accordingly. The Board sincerely regrets additional delay that may be incurred as a result of this remand. The matter is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records dated from June 2021 to the present. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford them an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of all outstanding records, forward the entire claims file, to an appropriate examiner to determine the nature and etiology of the Veteran's claimed lumbar spine disorder. The claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The need for further physical examination is left to the discretion of the examiner. The examiner is asked to answer the following question: Is it at least as likely as not (i.e., probability of 50 percent or greater) that any lumbar spine disorder had its onset during service, or is related to a disease, event, or injury during service, to include his service in the Persian Gulf War in the Southwest Asia theater of operations? In answering this question, the examiner must indicate full review of all service treatment records, including but not limited to a complaint of three-day long lower back pain in June 1988. (Continued on the next page) A rationale must be provided for all opinions. As part of this rationale, the examiner should 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). A discussion of the facts and medical principles involved would be of considerable assistance to the Board. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.