Citation Nr: 21065132 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 11-28 220 DATE: October 25, 2021 REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for a cervical spine disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1972 to May 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans (VA) Regional Office (RO). The Veteran testified before a Decision Review Officer (DRO) at the RO in August 2012. In November 2014, the Board remanded the case to afford the Veteran a hearing. In June 2015, he testified before the undersigned Veterans Law Judge. Transcripts of those proceedings are of record. In August 2015, the Board remanded the case for further development. Thereafter, in September 2018, the Board requested an advisory medical opinion from the Veterans Health Administration (VHA). The Board remanded the case again in September 2019 and October 2020 for further development. The case has since been returned to the Board for appellate review. On review, the Board finds that additional development is necessary prior to final adjudication of the issues on appeal. Lumbar Spine Disorder In a January 2021 VA medical opinion, the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In so finding, the examiner stated that the Veteran's lower back pain during and after service could have been due to spondylolysis, but it was "not possible to say one way or the other without mere speculation due to lack of objective evidence." The examiner also stated that there was no definitive way to prove whether the Veteran's diagnosis was congenital because no x-rays were taken prior to or immediately after service. In a separate January 2021 VA medical opinion, the examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond natural progression by an in-service injury, event, or illness. However, in so finding, the examiner stated that there was no way to definitively say whether lumbar spondylolysis existed prior to the Veteran's service without mere speculation. The January 2021 VA medical opinions regarding the Veteran's lumbar spondylolysis as written appear inconsistent. The examiner's supporting rationale also focused largely on lumbar spondylolysis and does not clearly address whether the Veteran's lumbar spondylolisthesis L4-5 manifested in or is otherwise causally or etiologically related to his military service. Moreover, it is unclear whether the examiner was unable to provide medical opinions without speculation due to the limitations of her personal knowledge or that of the medical community at large. See Jones v. Shinseki, 23, Vet. App. 382, 389-90 (2010) (noting that the phrase, "without resort to mere speculation," must not become a mantra that short circuits the careful consideration to which each claimant's case is entitled and holding that, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence). With respect to the Veteran's lumbar spine stenosis, the January 2021 VA examiner opined that the disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In so finding, the examiner stated that the Veteran's lumbar stenosis was not attributed to his military service because he was not diagnosed with the disorder until 2009. However, the examiner did not explain the medical significance of any time gap between service and the post-service diagnosis of lumbar stenosis. In addition, a December 1990 private treatment record noted an assessment of probable lumbar spinal stenosis and degeneration of L3-L4 discs. As such, it appears that the opinion was based on an incomplete or inaccurate factual premise. In a separate January 2021 medical opinion, the examiner also opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. However, the examiner's only supporting rationale was that the Veteran's lumbar spine stenosis was not diagnosed or listed in the record prior to 2009. Based on the foregoing, a remand is necessary to obtain an additional VA medical opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998). Cervical Spine Disorder In April 2020 and January 2021 VA medical opinions, the examiners opined that the Veteran's cervical spine disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of his opinion, the April 2020 examiner stated that the Veteran's disorder was more likely progressive and due to his age. The January 2021 examiner also stated that the Veteran did not suffer from neck pain until after a post-service fall in 1998. Notably, however, the April 2020 and January 2021 examiners did not have the opportunity to review a March 1975 correspondence from the Veteran in which he reported having neck pain. Therefore, a remand is necessary. The matters are REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his lumbar spine and cervical spine disorders that are not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the file. The AOJ should also obtain any outstanding VA medical records. 2. After any additional records are associated with the claims file, the AOJ should refer the Veteran's claims file to a suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's lumbar spine and cervical spine disorders. An additional physical examination should be performed only if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. He or she should specifically review the September 2018 VHA medical opinion request that provides a summary of pertinent lay statements and records. The Veteran has contended that his current low back disorder is due to an injury he sustained performing underway replenishment (UNREP) for warship destroyers and aircraft carriers during service. He has also reported that his back pain had its onset during service and continued thereafter, including during the period of time between his separation from service and post-service injuries. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. (a) With regard to the lumbar spondylolysis, the examiner should indicate whether the disorder is a congenital defect or disease. To assist the examiner, for VA adjudication purposes, "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a condition not considered capable of improving or deteriorating. (As an example, VA considers sickle cell anemia as congenital "disease" for VA purposes, whereas refractive error is considered a congenital "defect.") If the examiner determines that the lumbar spondylolysis is a congenital defect, he or she should state whether there is any evidence of superimposed disease or injury during the Veteran's active duty service. If the examiner determines that the lumbar spondylolysis is a congenital disease, he or she should state whether the disorder clearly and unmistakably preexisted the Veteran's active duty service. If so, the examiner should state whether there was an increase in the severity of the lumbar spondylolysis during the Veteran's active duty service and whether any increase was due to the natural progression of the disorder. If the examiner determines that the lumbar spondylolysis is not a congenital defect and/or did not clearly and unmistakably preexist the Veteran's active duty service, he or she should state whether it is at least as likely as not that the disorder manifested in or is otherwise causally or etiologically related to active duty service, to include any symptomatology or injury therein. (b) With regard to the lumbar spine stenosis L2-3, L3-4, the examiner should state whether the disorder clearly and unmistakably preexisted the Veteran's active duty service. If so, the examiner should state whether there was an increase in the severity of the disorder during the Veteran's active duty service and whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. If the examiner determines that the lumbar spine stenosis L2-3, L3-4, did not clearly and unmistakably preexist the Veteran's active duty service, he or she should state whether it is at least as likely as not that the disorder manifested in or is otherwise causally or etiologically related to active duty service, to include any symptomatology or injury therein. (c) With regard to the lumbar spondylolisthesis L4-5, the examiner should state whether it is at least as likely as not that the disorder manifested in or is otherwise causally or etiologically related to the Veteran's active duty service, to include any symptomatology or injury therein. (d) The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's cervical spine disorder manifested in or is otherwise causally or etiologically related to his military service. (e) If the examiner determines that a current lumbar spine disorder is related to the Veteran's military service, he or she should also state whether it is at least as likely as not that the Veteran has a current cervical spine disorder that is caused or aggravated by the lumbar spine disorder. In rendering his or her opinion, the examiner should consider the March 2019 VHA medical opinion and the private medical opinions of record, including the October 2010, October 2014, and June 2015 private medical statements. He or she should address the Veteran's assertion that he continued to have back pain during the period between his separation from service and his post service injuries. The examiner should also consider a March 1975 correspondence in which the Veteran reported having neck pain. In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Thus, unless the examiner concludes that the current disability is either likely or unlikely the result of an event, injury, or disease incurred in service, the examiner should state whether it is at least as likely that the current disability is the result of an event, injury, or disease incurred in service as opposed to its being the result of some other factor or factors. A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Wulff, 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.