Citation Nr: 21064658 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 11-08 004 DATE: October 21, 2021 REMANDED Entitlement to service connection for degenerative disease of the lumbar spine is remanded. REASONS FOR REMAND The Veteran had active service from February 1960 to February 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2012, the Veteran testified at a Decision Review Officer hearing, and in October 2014, the Veteran testified at a videoconference hearing before the undersigned. Transcripts of both hearings are of record. In a January 2015 decision, the Board denied the Veteran's claim for entitlement to service connection for degenerative disc disease of the lumbar spine, and the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In June 2016, the Court remanded the issue to the Board based on a June 2016 Joint Motion for Remand (JMR). The Board remanded the case in April 2017 for actions consistent with the June 2016 JMR. In February 2018 and December 2020, the Board remanded this case for additional development. Most recently, in June 2021 the Board remanded this matter for more development. The Board finds that there was not substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). 1. Entitlement to service connection for degenerative disease of the lumbar spine is remanded. The Veteran contends that his degenerative disc disease is the result of a December 1962 weightlifting incident. The Veteran reportedly picked up a weight while in a standing position and experienced, "the most terrible electric-type shock" in his back. In October 2014, the Veteran testified at a Board hearing that following the incident, "he was on the ground for a while and went back to base, back to my rack, and laid down, and went, then I went to sick bay to see the doctor." The Veteran was prescribed a muscle relaxer, heat, and assigned to light duty. The Veteran testified that he did not seek additional treatment because "the Marine Corps is pretty tough on malingering, and they -- I was coming up for, pretty much for my 4.0 good conduct medal, and I wanted to not get anybody upset by taking off any more time than I had to." The Veteran was assigned to be a VIP driver, after the incident. He placed a pillow behind his back to relieve the pain. The Veteran testified that his separation examination was short, "as long as it takes you to check the boxes." In October 2014, the Veteran testified at a Board hearing. He testified that after service his employment history was composed of sales jobs that did not require any physical strength. The Veteran testified that he received treatment after service from a doctor, but he was unable to obtain the records, because his doctor is deceased. In 2003, the Veteran started receiving treatment from the VA, and in 2009, the Veteran sought treatment from private providers because he was eligible for Medicare. The Veteran has undergone several VA examinations through the years, but the examinations have not been complete. The examiners have not adequately addressed the Boards directives and have not specifically addressed the Veteran's lay testimony or the Veteran's private treatment records. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). To be considered adequate, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In August 2021, the Veteran was afforded a VA examination for his back condition. The examiner did not have an orthopedic specialty, and thus the opinion does not comply with the Board's remand directives. In addition, while the examiner indicated that she reviewed the Veteran's lay statements and private physician's statements she did not provide a meaningful analysis. She based her medical opinion on the absence of objective evidence instead of discussing the Veteran's private physician's statements. The Board cannot make a fully informed decision on the issue of entitlement to service connection for degenerative disease of the lumbar spine without obtaining an opinion addressing the lay testimony, that he obtained treatment after service, and that addresses the Veteran's private treatment providers nexus opinions. Thus, a remand is necessary to obtain an addendum opinion prior to adjudicating the Veteran's claim for entitlement to service connection for degenerative disease of the lumbar spine. The matter is REMANDED for the following action: 1. If possible, return the Veteran's complete record, to include a copy of this remand, and the claims folder, to the examiner who reviewed the file and provided the May 2021 medical opinion hereinafter "examiner," for an addendum opinion. If it is not possible to obtain clarification from the examiner, then forward the Veteran's claim file to another appropriate medical professional with an Orthopedic Specialty who has the requisite experience to render the requested medical opinions. No examination of the Veteran is necessary unless the examiner deems otherwise. The examiner must review the expanded record and address the following: The examiner should specifically address the diagnostic imaging evidence of record indicating the Veteran currently has abnormalities in the spinal curvature, to include the September 2009 CT of the abdomen and pelvis showing dextroscoliosis and the December 2016 MRI of the lumbar spine showing straightening of the usual lumbar lordosis, and state whether those abnormalities are the same as or related to the flattening of the spine that was noted on entrance into service. Specifically, the examiner is asked to clarify, the statement, "Unable to make this determination, doing so would be speculative at best." In particular, the examiner should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). Is it at least as likely as not (50 percent or greater probability) that any of the Veteran's currently diagnosed back disorders are etiologically related to the December 1962 weightlifting incident, or to any other in-service injury, event or disease? Was there aggravation during service of the flattening of the lumbar curve noted on entrance into service? A complete rationale must be provided for any opinion or conclusion expressed. The clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). If the examiner is unable to provide any requested opinion, he or she must provide a thorough explanation. Specifically, the examiner must note and address the following: (a.) The Veteran continued to experience back pain after the December 1962 weightlifting incident, but he did not seek additional treatment because "the Marine Corps is pretty tough on malingering, and they -- I was coming up for, pretty much for my 4.0 good conduct medal, and I wanted to not get anybody upset by taking off any more time than I had to." (b.) The Veteran's separation examination was short, and only took as long as checking some boxes. (c.) When the Veteran was separated from service he was treated by multiple medical providers for his back condition, and his family doctor prescribed him with pill as treatment for his back pain. However, the medical records are no longer available. (d.) The Veteran contends that he has had pain since service, but the pain became worse in 1995. Specifically, in 2004, The Veteran reported to his VA provider that his pain began after bouts of heavy lifting. (The Veteran does not specifically explain what caused the increase in pain, or what extracurricular activities he participated in since service.) The examiner should elicit any necessary testimony in order to comment. (e.) The Veteran submitted a statement by Dr. Bashir, that indicated that the Veteran reported having back pain since 1962, while lifting low weights as part of his training. The doctor stated he has treated the Veteran for back pain since 2009, and that the Veteran reported his back pain became progressively worse in over a 5-year frame. The doctor noted that there was no documentation of physical exam or imaging at that time. The doctor stated that it is likely the cause of his back pain. "It is medically reasonable that any degenerative changes to his lumbar spine, which are present today, began with his injuries in 1962." (f.) In an April 2011 letter, Doctor Bashir clarified his first letter, stating that he is a specialist trained in operative and non-operative management of degenerative spinal disease. He stated that in "conjunction with [his] review of the MRI exam of 2009 that he ordered and reviewed, as well as a copy of the x-ray report" from the VA, and statements made by the Veteran describing his occupations from service to the present, reinforce his belief that the back injury during training was likely as not the primary cause of the injury, opposed to any other occupational causes. (g.) In a December 2010 letter Doctor Wiggins, included the Veteran's report of injuring his back, lifting weights, and seeking treatment in December 1962. She indicated that "this was likely the time of an acute disc herniation based on the patient's description of the onset and nature of pain. His low back pain has continued throughout his life." (h.) In February 2011, the Veteran's spouse submitted a letter on his behalf. She indicated that for the past thirty years, or thirty-eight years if she includes dating the Veteran, she has "been aware of the Veteran's chronic pain and debilitating (incapacitating) back problems." She indicated the symptoms included signs of pain and discomfort, sleeplessness, complaints of tinging, stiffness, inability to bend, stretch or stand for long periods of time, and inability to perform routine household and yard tasks. (i.) In September 2014, the Veteran's stepson provided a statement on the Veteran's behalf. He indicated that the Veteran had to rely on him to help with yard work and small repairs around the house. He has observed the Veteran's swollen ankles and he described the tingling feet. (j.) In October 2014, Doctor Mohr revealed that the Veteran has complaints of bilateral lower extremity radiculopathy, decreased walking tolerance, and chronic back pain. The doctor indicated that after reviewing the Veteran's records that he at minimum sustained a muscle sprain strain. His rationale included, "for the diagnosis of lumbar paraspinal sprain and strain that most mechanical spine disorders that cause back pain, involve a nonspecific mechanical derangement: Identifying a specific cause is often difficult and often impossible." The doctor opined that it is as likely as not or more likely than less likely related to his weight training incident. The doctor states that advanced imaging was not available, and the Veteran likely sustained "internal derangement of lumbosacral disc, such as a tear of the annuls, which would accelerate the degenerative disc cascade. (k.) In October 2014, Doctor Mohr submitted a second statement with a rationale of his diagnosis being, "most mechanical spine disorders that cause neck and back pain involve a non-specific mechanical derangement. Muscle strain, ligament sprain spasm or a combination. He also indicated that only about 15 percent involve specific structural lesions that cause symptoms including disk herniation, compression fracture, lumbar spinal stenosis, osteoarthritis, and spondylolisthesis. 2. The examiner should give a detailed explanation for the reasons for the opinion(s) provided. The medical reasons for accepting or rejecting the Veteran's theories of entitlement should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones, 23 Vet. App. at 389. (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained). 3. Then, the Veteran's claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.