Citation Nr: 21072894 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-40 066A DATE: December 6, 2021 REMANDED Entitlement to service connection for lumbar degenerative disc disease status post L4-L5 fusion, claimed as a back and spinal injury (lumbar degenerative disc disease (DDD)), is remanded. Entitlement to service connection for DDD of C6-C7, claimed as a neck injury, to include as secondary to lumbar degenerative disc disease (cervical degenerative disc disease), is remanded. REASONS FOR REMAND The Veteran had active service from August 1997 to December 1999. This matter comes before the Board of Veterans' Appeals (Board) from an appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA). In an August 2017 VA Form 9, the Veteran requested a videoconference hearing at a local VA office. In August 2021, VA sent correspondence to the Veteran's home address which notified him of a September 2021 hearing date. However, the Veteran failed to appear for the September 2021 hearing. He has not offered good cause for his failure to appear for the hearing or requested that it be rescheduled. Therefore, the Board considers his request for a hearing to be withdrawn. See 38 C.F.R. §§ 20.702(d); 20.704(d). 1., 2. Entitlement to service connection for lumbar degenerative disc disease and cervical degenerative disc disease are remanded. The Veteran contends that he hurt his back when he slipped on ice during a field exercise at Fort Riley. He argues that he started the Army medical evaluation board (MEB) process but was not allowed to complete it. He reports that a doctor told him that his cervical spine DDD was caused by bad posture attributed to his lumbar spine DDD. The Veteran's pre-service treatment records note multiple reports and treatment for low back pain. October 1993 x-rays showed a mild circumferential bulge at the level of L5-S1 and hypertrophied ligamenta flava. April 1995 x-rays were revealed a pars defect in the L4 vertebra and acute/subacute spondylosis. The Veteran's service treatment records (STRs) note that an entrance report of medical history and entrance examination do not include reports of complaints, treatment, or diagnoses of a back condition. STRs note in-service treatment for various back complaints. An August 1999 x-ray revealed mild DDD at L4-L5 and L5-S, without nerve root compromise or spinal stenosis. A February 1999 MEB examined the Veteran and determined that he was qualified for expiration of his term of service (ETS.) Social security administration (SSA) records note the Veteran's report to a treating physician that he fell on his back working construction in 2006 and underwent surgery the same year for spondylolisthesis. He also reported a 10 foot fall off a truck in January 2011 that resulted in low back pain that goes down his leg. When a claimed disability is not noted upon entry in service, the Veteran is presumed to have been in sound condition on entry in service with respect to such disability. As noted above, a back disability was not noted on service entrance; therefore, the Veteran is presumed to have been sound for a back-manifested disability on entry in service. Such presumption is rebuttable only by clear and unmistakable evidence both that (1) the condition preexisted service and (2) if rebutted, that it was not aggravated by such service (did not increase in severity during service, or any increase in severity during service was due to natural progression). 38 U.S.C. §§ 1111, 1153; 38 C.F.R. § 3.306. Upon a June 2014 VA (thoracolumbar) examination, the examiner opined that the Veteran's diagnosed lumbar degenerative disc status post L4-L5 fusion, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. The consulting provider noted that his spondylosis and disc bulging were present prior to service and surgical intervention was not required until some years post discharge from service. This finding may be premised on pre-service treatment records, but the examiner does not cite to any pre-service treatment records (whether in the medical history or in the opinion) and does not provide any rationale for how pre-service diagnoses of spondylosis and disc bulging would naturally progress into lumbar degenerative disc disease status post L4-L5 fusion. Notably, medical evidence is needed to establish pre-existing condition. Crowe v. Brown, 7 Vet. App. 238, 246 (1994.) The June 2014 VA opinion is insufficient to rebut the presumption of soundness on entry in service. Therefore, a remand is necessary for an examination to obtain an adequate medical advisory opinion, applying the appropriate evaluative criteria and identifying supporting evidence. Upon a June 2014 VA (cervical) examination, the examiner opined that he was unable to determine a baseline level of severity based upon medical evidence available. The examiner noted that the Veteran's cervical DDD did not exist during his service. The examiner cited medical literature for the premise that lumbar disease does not cause the formation of cervical spondylosis/degenerative DDD. The examination is inadequate because the examiner was only asked to address aggravation by a service-connected condition. The examiner opinion is not clear and unmistakable evidence that cervical degenerative disc disease pre-existed his entry on active duty and is insufficient to rebut the presumption of soundness on entry in service (nor does the opinion address the Veteran's theory of direct service connection.) Therefore, remand for another examination to obtain an adequate medical advisory opinion is necessary. In his October 2014 notice of disagreement, the Veteran reported that a doctor informed him that his cervical degenerative disc disease is due to his bad posture related to his lumbar degenerative disc disease. Any outstanding records of evaluations or treatment he has received for the symptoms are pertinent evidence that must be secured; VA records are constructively of record. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the provider(s) of all evaluations and treatment (records of which are not already in the claims file) he has received for back problems, and to submit authorizations for VA to secure for the record any private records of such evaluations and/or treatment. Obtain complete records of such evaluations and/or treatment from all providers identified. If any private records identified are not received pursuant to an AOJ request, the Veteran should be so notified and advised that ultimately, it is his responsibility to ensure that private records are received. 2. Arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of his lumbar degenerative disc disease (DDD) and cervical DDD disabilities, and specifically whether they are directly related to (were incurred during) his active service. The Veteran's record must be reviewed by the examiner. The examiner must acknowledge that the Veteran is presumed to have been sound on entry to service with respect to lumbar DDD and cervical DDD disabilities. On review of the record and examination of the Veteran, the examiner should: (a.) Identify (by diagnosis) each lumbar DDD and cervical DDD disability entity found/or shown during the pendency of the instant claim. (b.) Identify the likely etiology of each lumbar DDD and cervical DDD entity diagnosed. The analysis should proceed as follows: (c.) Is there any medical evidence in the record that renders it undebatable, from a medical standpoint, that the lumbar DDD and/or cervical DDD pre-existed service? If so, identify the evidence [and proceed to (d)]. If not, proceed with the presumption that the lumbar DDD and cervical DDD did not pre-exist service [and proceed to (e)]. (b.) Did the respective disability manifest during service? If so, is there any evidence in the record, that renders it undebatable from a medical standpoint that the disability was not incurred or aggravated in service? If so, identify such evidence. (c.) Was current DDD of C6-C7, if so found, at least as likely as not (50 percent or more) proximately caused by, or aggravated beyond its natural progression by, a service-connected disability? (d.) If upon the foregoing analysis the conclusion is that a lumbar DDD and/or cervical DDD disabilities was/were not incurred or aggravated in service, identify the etiology for the disability that is considered to be more likely, and explain why that is so. Specifically, is it at least as likely as not (a 50 percent or better probability) that the disabilities are etiologically related to the Veteran's active-duty service, to include as related to his complaints and injuries noted and activities therein? All opinions must include a complete explanation of rationale. [Any opinion indicating that a lumbar DDD and/or cervical DDD disabilities is/are unrelated to service must include explanation why the complaints of low back pain in service would not have been a factor in the development of the current disability and should address the 2006/2011 falls noted in SSA records.] B. J. KOMINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Lederman 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.