Citation Nr: 21067929 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 15-10 639 REMANDED Entitlement to service connection for a lumbar spine disorder, claimed as a back injury is remanded. REASONS FOR REMAND The Veteran had active service from February 1964 to February 1967. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in May 2018 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In September 2018 the Board remanded, in part, the Veteran's claim for further development. In September 2019, the Board denied the Veteran's claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In April 2021, the Court issued a Memorandum Decision vacating the September 2019 Board decision and remanding for compliance with the terms of the Memorandum Decision. The case has now been returned for further appellate consideration. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2018). 38 U.S.C. § 7107(a)(2). Entitlement to service connection for a lumbar spine disorder, claimed as a back injury. The February 2019 Memorandum Decision directed attention to the Veteran's lay statements as considered in the September 2018 Board remand instructions. Specifically, the Court directed attention to the Board's instruction that the RO obtain an addendum opinion to: "(1) consider the Veteran's contention that he sustained an injury to his low back when he jumped from a helicopter three or four feet above the ground, fell to the ground, and rolled down a hill on July 3, 1965; (2) consider the Veteran's contention that bowling in December 1965 aggravated his July 1965 low back injury; and (3) address the likelihood that injuries such as those described by the Veteran could have caused the Veteran's current low back disorders (i.e., indicate whether the pathology/disease process associated with the Veteran's lumbar spine is consistent with the mechanism of injury claimed by the Veteran)." The Court determined that the June 2019 and July 2019 VA addendum opinions did not substantially comply with the September 2018 Board remand instructions. In making this determination, the Court found that the September 2018 Board remand instructions directed the VA examiner to assume the credibility of the lay statements of the Veteran and his spouse. The Court found that while the examiner acknowledged the lay statements, the June 2019 addendum opinion "ignored the lay evidence of record of onset of symptoms in service and assertions of continuous symptomatology since service and based his nexus opinion solely on the information found in the service records and post service medical records." Further, the Court found that in clarifying the June 2019 VA addendum opinion, the examiner again erred by again refusing to accept the credibility of the Veteran's lay statements. The Court distinguished between evidence of treatment for a back condition and statements of continuous symptomatology of a back condition, finding that while the examiner noted a lack of evidence of continuous treatment for a back condition, she failed to also consider the Veteran's assertions of continuous symptoms of a back condition. Finally, the Court found that the June 2019 and July 2019 VA addendum opinions failed to address the Veteran's contention that bowling in December 1965 aggravated his July 1965 low back injury. As the Board relied on the June 2019 VA addendum opinion in denying the Veteran's appeal, and the addendum opinions of record do not fully consider the lay statements providing a history of the onset and course of the Veteran's lumbar spine disorder, the Court determined that the September 2019 Board decision provided inadequate reasons and bases. As such, a remand is necessary to obtain an addendum opinion which assumes the credibility of the lay testimony of record regarding the onset and course of the Veteran's lumbar spine condition and substantially complies with the prior Board remand instructions. The matters are REMANDED for the following action: 1. Obtain an addendum opinion for the Veteran's claimed lumbar spine disorder. The examiner is requested to review all pertinent records associated with the claims file, to include this Remand. The examiner should state that the claims file was reviewed. The examiner should respond to the following: (a.) Please identify the likely cause for the Veteran's diagnosed degenerative disc disease of the lumbar spine. Specifically, is it at least as likely as not (a 50 percent or greater probability) that any such disorder had its onset during service, or is any way causally or etiologically related to his active service? In so opining, the examiner is asked to do the following: (1) consider the Veteran's contention that he sustained an injury to his low back when he jumped from a helicopter three or four feet above the ground, fell to the ground, and rolled down a hill on July 3, 1965; (2) consider the Veteran's contention that bowling in December 1965 aggravated his July 1965 low back injury; and (3) address the likelihood that injuries such as those described by the Veteran caused the Veteran's current low back disorders (i.e., indicate whether the pathology/disease process associated with the Veteran's lumbar spine is consistent with the mechanism of injury claimed by the Veteran). For the purposes of this opinion, the examiner must assume the Veteran is credible in regard to his belief of having continuous symptoms since service. Please discuss whether the Veteran's assertions are generally inconsistent with medical knowledge or implausible, and whether the Veteran's reports about symptoms experienced over the years aligns with how the low back disability is known to develop. (b.) If the Veteran's degenerative disc disease of the lumbar spine is deemed to be unrelated to service, the examiner should, if possible, identify the cause considered more likely and explain why that is so. A detailed explanation is requested for all opinions provided, citing to supporting clinical data and/or medical literature, as appropriate. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Bynum, 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.