Citation Nr: 21073078 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 08-00 368 DATE: December 7, 2021 REMANDED Entitlement to service connection for a disability of the upper back (to encompass disability of the neck) is remanded. REASONS FOR REMAND The Veteran had active service from October 1998 to June 2006. This matter was remanded multiple times including in October 2014 to schedule a Board hearing, which was held before the undersigned in August 2017. This matter was remanded again in February 2018, July 2020, and June 2021. Other issues before the Board were disposed of in the earlier decisions. The remaining issue of entitlement to service connection of the upper back/neck is returned to the Board for further consideration. 1. Entitlement to service connection for a disability of the upper back (to encompass disability of the neck) disability is remanded. Unfortunately, the development undertaken to date continues to be inadequate and fails to substantially comply with the Board's prior remand directives, most recently set forth in June 2021. As such, an additional remand is necessary before the Board can adjudicate the issues on appeal. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with,... ensure compliance); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (although under Stegall VA is required to comply with remand orders, substantial compliance, not absolute compliance, is required). In the June 2021 remand the Board pointed out that the claim was previously remanded for an etiological opinion as to whether the Veteran has a disability of the upper back related to service. The Board noted that the opinion from a December 2020 VA examination determined that the Veteran had degenerative arthritis of the spine and right cervical spasms, which are less likely than not due to service. In the rationale the December 2020 examiner acknowledged that a September 2003 service treatment contained the Veteran's reports that at the age of 16, prior to service she was in a motor vehicle accident (MVA) and had upper back and neck issues following this. The examiner conceded that this preservice MVA cannot be dismissed as a contributing cause of her current upper back/cervical spine disorder. The Board in its June 2021 remand pointed out that this reported pre-existing disability triggered the presumption of soundness, in which VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38U.S.C. §§1111, 1132, 1137. The Board thus remanded the matter in June 2021 to obtain an addendum VA opinion which specifically addressed the presumption of soundness. The remand directives specifically requested the following development: Request that the December 2020 examiner (or another examiner with appropriate expertise if the December 2020 examiner is unavailable) review the claims folder and respond to the following with regard to the Veteran's claimed neck/upper back disability: a) Did a disability of the neck or upper back clearly and unmistakably (undebatable) preexist the Veteran's service? b) If the examiner finds a neck or upper back disability clearly and unmistakably preexisted service, the examiner must opine whether such a disability was clearly and unmistakably not aggravated by service. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. Thereafter, VA examinations were obtained in September 2021 that noted cervical strain diagnosed in 2021 and degenerative disc disease (DDD) other than intervertebral disc syndrome (IVDS) of the back (thoracolumbar spine) with the date of diagnosis in 2007. Following these examinations an opinion was obtained in August 2021, with a final addendum obtained in September 2021. This etiology opinion stated as follows: "It is LESS likely than not that the Veteran's neck and back issues with (sic) clearly and unmistakable existed during service, were not aggravated beyond their natural progression during service." This opinion is lacking in probative value because it mixes the standard language for direct service connection based on reasonable doubt "less likely than not," with the criteria for presumption of soundness which requires that for a disability not noted prior to service, clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. Furthermore, the rationale for the opinion is inadequate as the examiner, who acknowledged there was evidence of a pre-existing disorder of the back and neck, stated "The Veteran was seen....four times and last time was on May 5, 2003....There is no further reports of upper back and neck pain until 12 years later in 2015 where she is seen in chiropractic services." This opinion based on a lack of evidence of problems with the upper back or neck between 2003 and 2015 ignores the lay evidence from the Veteran suggesting continued symptoms after service. This includes her testimony at her August 2017 hearing in which she described self-treating for back symptoms with Icy Hot after injuring her back moving furniture, and her self-reports of chiropractic treatment in 2009 or 2010, (although the records appear unavailable). Her February 2021 lay statement further clarified that she did not treat her back pain for a while because she lacked insurance, but suggested ongoing symptoms. Additionally, the examiner's statement of no back or neck problems prior to 2015 ignores the medical evidence suggesting otherwise. This includes the February 2007 VA examination which noted subjective complaints of mid-back pain but with normal objective findings; private treatment records showing she requested a physical therapy referral for back pain while 8 months pregnant, January 2010 VA treatment records in SSA records showing neck and back pain since 2006. Finally, the examiner reported a history of a MVA in 2004 in the September 2021 VA examinations of the neck and back which appears inaccurate, as the Veteran has submitted evidence of a police report in correspondence dated in March 2021 showing the Veteran was in a MVA in January 2002. Accordingly, the Board finds that remand is necessary to obtain a VA examination addendum that applies the correct legal standard of clearly and unmistakably for both prongs of the analysis. Furthermore a complete rationale must accompany the opinions and considers the complete factual background. The matters are REMANDED for the following action: 1. Obtain an addendum opinion either from the September 2021 examiner or from another examiner with appropriate expertise if that examiner is unavailable. Request the examiner review the claims folder, and respond to the following with regard to the Veteran's claimed neck/upper back disability: a) Did a disability of the neck or upper back clearly and unmistakably (undebatable) preexist the Veteran's service? b) If the examiner finds a neck or upper back disability clearly and unmistakably (undebatable) preexisted service, the examiner must opine whether such a disability was clearly and unmistakably (undebatable) not aggravated by service (i.e. did not undergo an increase in the underlying pathology during service.) c) For any currently diagnosed neck or upper back disability that did not pre-exist a period of service, is it at least as likely as not (i.e., 50 percent or greater probability) that the disorder is directly related to service to include any incident therein documented in the STRs such as jogging, heavy lifting, as well as the police report showing she was in a January 2002 MVA during active duty? All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Eckart 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.