Citation Nr: 21071333 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-03 105 DATE: November 30, 2021 REMANDED Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for a left wrist condition is remanded. INTRODUCTION The Veteran served honorably on active duty in the United States Navy during the Peacetime, from November 1986 to November 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2014 and August 2014 Rating Decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In September 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing. A transcript of the hearing is of record. When these matters came before the Board in April 2021, they were remanded for additional development. The additional development has been completed and the matters return to the Board for further appellate review. While further delay is regrettable, for the reasons set forth below, the Board finds there has not been substantial compliance with the prior remand directives such that remand is again required. See Stegall v. West, 11 Vet. App. 268 (1998). Finally, although addressed in the Board's prior remand, there remains an outstanding Privacy Act request that has not been fulfilled. Because the claims herein are being remanded, there is no prejudice to the Veteran in again referring his Privacy Act request to the RO for appropriate action. Thus, on remand, the RO must follow procedures for complying with a Privacy Act request. REASONS FOR REMAND Entitlement to service connection for a low back condition is remanded. Pursuant to the Board's April 2021 remand, the Veteran underwent a VA examination in August 2021 regarding his claim for service connection for a low back condition. According to the VA examiner, the Veteran's low back condition is less likely than not due to, related to, or otherwise etiologically related to his military service. For the reasons set forth below, the Board finds the VA examination report inadequate for adjudication purposes and, consequently, there has not been substantial compliance with the prior remand directives such that remand is again required. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall, 11 Vet. App. 268. First, although the Board's remand directed the VA examiner to consider and discuss as necessary pertinent evidence including the Veteran's contention that he injured his low back "carrying a safe down a flight of stairs," service treatment records (STRs) regarding back pain dated December 1986, April 1989, and October 1989, the Veteran's September 2019 testimony, and VA treatment records noting "low back pain" as early as March 2002, the examiner's rationale for the opinion is devoid of any such consideration or discussion. Further, despite the aforementioned STRs spanning nearly three years, the VA examiner summarily concludes the Veteran's lower back pain "was acute only." Moreover, while the remand also advised the VA examiner that a lack of treatment cannot be the sole reason for a negative nexus opinion and the Veteran's statements and reports of onset and symptomology must be considered and discussed, the VA examiner summarily concludes that, "[t]here is no evidence of chronicity of care and symptoms are subjective only." As a result, the VA examiner fails to adequately report and consider the Veteran's statements regarding causation or when his lower back symptoms manifested or progressed. See Dalton v. Peake, 21 Vet. App. 23 (2007) (noting that a medical opinion which does not consider the Veteran's reports of symptoms and history, even if recorded in the course of the examination, is inadequate). Next, the Board is not persuaded by the VA examiner's rationale regarding the role an "August 2019" motor vehicle accident played in the Veteran's lower back condition. As an initial matter, the motor vehicle accident appears to have occurred in August 2013, not August 2019. Therefore, the opinion is based upon an incorrect factual premise. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Notwithstanding the above, and despite lay and medical evidence of record addressing lower back issues during military service and thereafter, the VA examiner appears to attribute the Veteran's degenerative disc disease to the "2019" motor vehicle accident by diagnosing it as "[d]egenerative arthritis of spine, [status post motor vehicle accident] in 2019." However, the VA examiner also reports that, after the motor vehicle accident, the Veteran's "lower back pain became more severe and intense." As such, the examiner's rationale appears contradictory as to whether the Veteran did or did not have a lower back condition prior to the 2013 motor vehicle accident. Based upon the foregoing, the Board is unable to conclude that the VA examiner applied valid medical analysis to the significant facts of this particular case, and finds the opinion lacks a clear conclusion with supporting data and a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Nieves-Rodriguez v. Peak, 22 Vet. App. 295, 301 (2008). Entitlement to service connection for a left wrist condition is remanded. Pursuant to the Board's April 2021 remand, the Veteran underwent a VA examination in August 2021 (reports submitted September 2021) regarding his claim for service connection for a left wrist condition. According to the VA examiner, the Veteran's claimed left wrist condition is less likely than not due to, related to, or otherwise etiologically related to his military service. As set forth below, the Board finds the VA examination report inadequate for adjudication purposes and, consequently, there has not been substantial compliance with the prior remand directives such that remand is again required. See Barr, 21 Vet. App. 303; Stegall, 11 Vet. App. 268. Although the Board's remand directed the VA examiner to consider and discuss as necessary pertinent evidence including, inter alia, the Veteran's September 2019 testimony, the examiner's rationale for the opinion is devoid of any such consideration or discussion. Significantly, while the VA examiner reports that the Veteran "developed subjective left wrist pain couple years ago," the Veteran testified he has "been hurt for years." See Dalton, 21 Vet. App. 23 (noting that a medical opinion which does not consider the Veteran's reports of symptoms and history, even if recorded in the course of the examination, is inadequate). Additionally, the VA examiner reports that, "[h]is left wrist x-ray in 2020 was normal" with "[n]o current treatment," and "[s]o no, current [diagnosis] for left wrist condition now." As such, and without properly considering and discussing the Veteran's reports of symptoms and history, the VA examiner's opinion appears conclusory in nature. Based upon the foregoing, the Board is unable to conclude that the VA examiner applied valid medical analysis to the significant facts of this particular case, and finds the opinion lacks a clear conclusion with supporting data and a reasoned medical explanation connecting the two. See Stefl, 21 Vet. App. at 124; Nieves-Rodriguez, 22 Vet. App. at 301. Accordingly, these matters are REMANDED for the following actions: 1. Pursuant to his March 2021 records request and the Board's prior remand, and in accordance with the procedures for complying with a Privacy Act request, provide the Veteran with the requested records. Concurrent with the process of obtaining and providing the requested records, proceed to implement the following remand instructions; do not delay implementing any of the following instructions while waiting to provide the requested records. 2. Schedule the Veteran for an in-person VA orthopedic examination with a physician who has not previously offered an opinion in this matter and possessing the necessary expertise to fully assess and provide an opinion regarding the nature, severity, and likely etiology of the Veteran's claimed low back condition(s) and left wrist condition(s). The examiner must obtain a full history from the Veteran. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as events during military service and observable in-service and post-service symptomology and functional limitations. All pertinent symptomology and functional limitations, including any manifestations to a compensable degree within one year from the date of separation from service if a chronic condition under 38 C.F.R. § 3.309 is involved, must be reported in detail. Based upon a review of all pertinent evidence in the Veteran's claims file including medical treatment and prior examination records, lay statements, and the examination results, the examiner must offer an opinion based upon an accurate medical history with clear conclusions and supporting data as to: (a.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's low back condition(s) manifested to a compensable degree within one year of military discharge or is due to, related to, or otherwise etiologically associated with an in-service event, injury, or illness? (b.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's left wrist condition(s) manifested to a compensable degree within one year of military discharge or is due to, related to, or otherwise etiologically associated with an in-service event, injury, or illness? In offering the above opinion(s), the examiner must consider, discuss, and reconcile as necessary all pertinent lay and medical evidence of record including, but not limited to: (a.) the Veteran's contention that he injured his low back "carrying a safe down a flight of stairs"; (b.) the Veteran's contention that he injured his left wrist when his "ship took a bad roll"; (c.) STRs regarding back pain dated December 1986, April 1989, and October 1989; (d.) STRs regarding left wrist tendinitis dated April 1988; (e.) the Veteran's September 2019 testimony that he has "been hurt for years," that an August 2013 motor vehicle accident aggravated his back condition, and that his physician father initially treated him "at home" until he started receiving VA medical treatment; and (f.) VA treatment records noting "low back pain" as early as March 2002. The examiner is advised that the mere absence of evidence does not equate to unfavorable evidence. The Veteran's lay statements and reports of onset and symptomology must be considered and discussed. A complete and thorough rationale for all opinions expressed, with references to pertinent evidence of record and, as warranted, relevant medical literature must be provided. (Continued on next page) T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.