Citation Nr: 21064552 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 15-10 468 DATE: October 20, 2021 REMANDED Entitlement to service connection for a low back disorder is remanded. REASONS FOR REMAND The appellant is a veteran (the Veteran) who served on active duty from March 7, 1979, to April 20, 1979. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2018, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e). At the Board hearing, the Veteran was informed of the basis for the RO's denial of his claim, and he was informed of the information and evidence necessary to substantiate the claim. 38 C.F.R. § 3.103. A transcript of the hearing is associated with the claims file. While the Board took testimony on several other issues appealed by the Veteran, the Veteran subsequently withdrew his appeal of the issues of entitlement to service connection for asthma, entitlement to service connection for dental trauma, and entitlement to compensation under 38 U.S.C. § 1151 for disorders of the right knee and lumbar spine in favor of a supplemental claim election. The Board no longer has jurisdiction over those issues. His election was untimely with respect to the claim of whether new and material evidence had been received to reopen the claim of entitlement to service connection for a low back disorder, which had been separately appealed. In an April 2019 decision, the Board reopened this claim and denied it on the merits. The Veteran appealed that decision to the Veterans Court. In an October 2019 Order, pursuant to a Joint Motion for Remand, the Veterans Court vacated that portion of the Board's decision denying service connection on the merits, and remanded the issue to the Board for additional development consistent with the Joint Motion. In April 2020, the Board remanded this appeal for additional evidentiary development. In November 2020, the Board again denied the claim. In a May 2020 Order, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board's decision and remanded the issue to the Board for additional development consistent with the Joint Motion. Entitlement to service connection for a low back disorder. In the May 2021 Joint Motion, the parties cited the argument of the Veteran's attorney in October 2020 that a general practitioner nurse did not have the expertise and experience to render an opinion on the complicated medical question as to whether a specific condition was a congenital disease or congenital defect, citing Francway v. Wilkie, 940 F.3d 1304, 1307 (Fed. Cir. 2019). In the October 2020 argument, the Veteran's attorney argued that the July 2020 medical opinion obtained by VA was not adequate. The reasoning was that the "family practitioner nurse" cited a medical article and a self-reported history of a pre-service fall and heavy lifting. The argument asserted that a nurse specializing in general practice would not have the experience and expertise to opine on such a difficult medical question as the difference between congenital defects and congenital diseases. The argument concludes that the Board should obtain an examination and opinion from a qualified doctor who has the knowledge and expertise to opine on such a complicated medical question. While the agreement of the parties is phrased in terms of a deficiency in the discussion of reasons and bases, the parties have essentially agreed that there is a difference between the opinion of a nurse practitioner and that of a physician. It is difficult to determine what additional discussion of reasons and bases would overcome this agreement. The Board is bound by the findings contained in the Joint Motion, as adopted by the Veterans Court. See Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) (under the "law of the case" doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case, and therefore, Board is not free to do anything contrary to the Court's prior action with respect to the same claim). Accordingly, the matter is REMANDED for the following action: 1. Schedule a VA examination, conducted by an appropriately qualified physician, specializing in orthopedic spine diseases and injuries, to determine the nature and etiology of the Veteran's low back disorder. The relevant documents in the claims file should be made available to the VA examiner. All indicated tests and studies should be accomplished. The VA examiner is requested to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the claimed low back disorder is causally or etiologically related to the Veteran's active service. There is evidence to indicate that the claimed disorder (spondylolysis with arthritis and radiculopathy) is either (1) a congenital disease, or that it is (2) a congenital defect. Under VA law, a congenital defect is immutable, and not subject to aggravation, but other conditions may be superimposed upon it. A congenital disease may be subject to aggravation, or worsening beyond the natural course of the disease. The opinion should identify whether the condition claimed is a congenital defect or a congenital disease. If found to be a congenital disease, the opinion should state whether the disease was aggravated by service. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation or worsening as it is to find against causation or worsening. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, the examiner is asked to please provide complete explanations stating why this is so. In so doing, the examiner is asked to explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that the examiner has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Readjudicate the remanded claim. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Cramp 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.