Citation Nr: 21064995 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 19-32 444 DATE: October 22, 2021 REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1969 to January 1972, including verified service within the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, this claim was remanded on March 3, 2020 for a required VA examination. See BVA Decision ( Mar. 3, 2020 ). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). An examination was conducted on August 14, 2020, and the Veteran was issued a Supplemental Statement of the Case (SSOC) on September 2, 2020. The Board reasserts jurisdiction accordingly. While the Board sincerely regrets additional delay that may incurred as a result of this remand, the Board concludes that it is precluded from issuing a determination as to this claim at this time. As the Veteran is entitled to substantial compliance with all previous remand directives, see Stegall v. West, 11 Vet. App. 268, 271 (1998), but has not yet been afforded substantial compliance, the remand is accordingly necessary. This appeal is advanced on the docket on account of the Veteran's advanced age. 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for a lumbar spine disorder is remanded. In short, the Veteran's claim for service connection for a lumbar spine disorder was remanded on March 3, 2020 to (a) attempt to associate medical records from a VA hospital in Cleveland, Ohio in or about May 1971, where and when the Veteran presented for back pain while he returned home pending transfer to a subsequent duty station, and (b) afford the Veteran a VA examination and etiological opinion. A VA examination was performed on August 14, 2020. A negative etiological opinion was returned, concluding that the Veteran's back pain is less than 50 percent likely attributable to active duty service. The Board concludes that this opinion is inadequate for adjudication purposes. As a preliminary matter, the examiner concluded that the "Veteran did report some back strain in service, but it resolved." See VA Exam (Opinion) ( Aug. 14, 2020 ), at Question No. 3 et seq. The Board cannot locate any evidence of the Veteran stating that the back pain resolvedon the other hand, the Veteran's back pain was noted specifically upon the separation examination. See contra STR (Dec. 15, 1971) (rec'd Nov. 20, 2018); See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). If the examiner concluded that the back pain must have resolved due to the Veteran's post-service professional career, then the Board concludes that an etiological opinion based solely upon an absence of evidence of treatment is inadequate for being merely conclusory. 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. 3030 (2009); Buchanan v. Nicholson, 451 F.3d 1331 (2006); Jandreau v. Nicholson, 492 F.3d 1372 (2007). Furthermore, the examiner appears to have failed to elicit a subjective history of the Veteran's back pain, which the Veteran may have been competent to provide. See, e.g.: Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Finally, the August 2020 examiner appears to have concluded that the Veteran's back pain is not at least 50 percent likely attributable to active duty service, because the back pain is instead attributable to his obesity. See VA Exam (Opinion) ( Aug. 14, 2020 ), supra, at Question No. 3 et seq. VA's Office of General Counsel (OGC) issued a precedential opinion finding that obesity may be an "intermediate step" between a service-connected disability and a current disability that may be connected on a secondary basis. In order to meet these criteria, the veteran must demonstrate that a previously service-connected disability caused him to become obese; obesity was a substantial factor in causing secondary disability; and the secondary disability would only have occurred but for the obesity. VAOPGCPREC 1-2017 (January 6, 2017). In this case, the Veteran is also service connected for coronary artery disease, diabetes mellitus type II, posttraumatic stress disorder (PTSD), chronic lymphatic leukemia, and tinnitus. See Rating Decision (Codesheet) (Oct. 29, 2019). As a result, the Board therefore concludes that the record reasonably raises a possibility that the Veteran's claimed lumbar spine disorder is secondary to another service-connected disorder, with obesity as an intermediate step. As such, the Board determines that the Veteran has not yet been afforded substantial compliance with the remand directives. See Stegall, supra. The Board has no choice but to remand the Veteran's claim for an addendum opinion. The matter is REMANDED for the following action: 1. The Veteran should be given the 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. 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 him 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 outstanding records, return the Veteran's claims file to the August 2020 VA examiner of record for an addendum opinion as to service connection for the claimed lumbar spine disorder. The need for further in-person examination is left to the discretion of the VA examiner. The examiner should respond to the following questions: (A) Is it at least as likely as not (50 percent probability or more) that any lumbar spine disorder to include pain causing impairment is related to service, to include the lower back pain noted in the service treatment records and at separation and in the injury described by the Veteran? If the examiner should conclude that the Veteran's in-service back pain resolved, then specific evidence stating as such must be specifically identified. (B) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's lumbar spine disorder was caused or aggravated by the weight gain/obesity resulting from his service-connected disabilities? If the examiner finds that the Veteran's lumbar spine disorder is a result of weight gain/obesity, he or she should address whether it at least as likely as not (i.e., a 50 percent or greater probability) that (1) the Veteran's service-connected disabilities caused him to become obese and, if so, (2) whether such resulting obesity was a substantial factor in causing or aggravating his disabilities, and (3) whether his lumbar spine disorder would not have occurred or worsened but for the obesity caused by his service-connected disabilities. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) The medical opinion must support the conclusions reached with an analysis that is adequate 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. 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.