Citation Nr: 21070030 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 10-34 933 DATE: November 22, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1963 to November 1965. The Board denied the claim on appeal in a February 2020 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). The Veteran and the Secretary of Veterans Affairs (the Parties) filed a Joint Motion for Remand (JMR) with the Court in November 2020. Later that same month, the Court issued an order granting the JMR and remanding the claim to the Board. In April 2021, the Board remanded this issue in order to obtain a VA medical opinion on this matter in accordance with the JMR. Specifically, the JMR indicated that the Board failed to address the post-service complaints of back pain and associated symptomatology since separation from active service. The JMR noted multiple complaints of post-service back pain. These include a November 1999 VA treatment record, an April 2004 VA spine examination, and a November 2012 VA back examination. The parties agreed that a remand was necessary so that the Board could address the post-service complaints of back pain. The JMR also noted that the October 2019 VA neurosurgeon opinion, which formed the foundation for the denial, is flawed, as it relied at least in part on the theory that the back pain resolved during service. In a June 2021 VA opinion, the VA examiner concluded that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner discussed the Veteran's March 1964 paravertebral muscle spasm, which the examiner noted likely resolved with no residuals, as there were no further entries. The examiner also noted the Veteran's January 1965 fall from a Jeep. The examiner found that, although the Veteran did have an event in service, no chronic injury can be inferred, and the Veteran's separation examination is negative for ongoing conditions. The examiner noted that the Veteran did not have evidence of a spine condition until apparently acute events in 1997. There is some reference to a herniation in 1988, but this is unclear. The examiner went on to note that the Veteran had isolated incidents in service, which appear to have resolved with no sequelae. The examiner noted that degenerative spine disease is considered a naturally occurring condition due to normal wear and tear with aging with associated natural disc desiccation. There are no continuous symptoms documented, and the Veteran clearly had a demarcation of symptomatology in 1997. It is unlikely that the Veteran had a disc herniation in 1988. Herniated discs imply an acute event with acute symptoms requiring acute care. Disc protrusions, on the other hand, may be treated conservatively over a longer period of time. A 1988 event, if confirmed, does not change this rationale. It is more likely than not that the Veteran's degenerative spine disease is naturally occurring and unrelated to events in service, including the isolated incident of strain/spasm and the Jeep accident. The events in 1997 may have represented acute herniation occurring in existing, naturally occurring degenerative spine disease. In a July 2021 statement, the representative argued that the June 2021 opinion is inadequate, as the examiner failed to take into account the Veteran's reported history of continued symptomatology, as well as treatment from Dr. Varela and Dr. Negron following discharge from service. In this regard, the Board notes that, while the claims file does not contain treatment records from Dr. Varela or Dr. Negron, the claims file does contain private treatment records dating back to 1988 and throughout the 1990s documenting a backache. See Western Health Region medical records. As the June 2021 VA examiner failed to discuss these complaints of back pain throughout the 1990s, the Board finds that an addendum opinion must be obtained on this matter, and efforts should be made to obtain treatment records from Dr. Varela and Dr. Negron. The matters are REMANDED for the following action: 1. Send to the Veteran a letter requesting that he provide sufficient information, and if necessary, authorization to enable the Regional Office (RO) to obtain any outstanding, pertinent private medical records, to particularly include records from Dr. Varela and Dr. Negron. Request all identified records. Associate any records received, including negative responses, with the claims file. 2. After obtaining the above-identified medical records to the extent possible, obtain a VA addendum nexus opinion as to the nature and etiology of the claimed low back condition. If a new examination is deemed necessary, perform all necessary tests. Document a full medical history in the examination report, following a review of the entire claims file. The examiner is asked to opine as to whether any diagnosed low back condition at least as likely as not (a 50 percent or greater probability) had its onset during or is otherwise related to any event or injury during service. Provide a complete rationale for all opinions. In providing this rationale, the examiner should discuss the Veteran's reported history of a continuity of symptomatology since service. The examiner should discuss records from Western Health Region documenting back pain or a backache dating back to 1988 and throughout the 1990s; a November 1999 VA treatment record; an April 2004 VA spine examination; and a November 2012 VA back examination. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Durham, 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.