Citation Nr: 21073866 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 09-36 155 DATE: December 10, 2021 REMANDED Entitlement to service connection for a thoracolumbar spine disability to include as secondary to service-connected residuals of shell fragment wounds is remanded. REASONS FOR REMAND The Veteran served in active-duty service from April 1969 to April 1971. This matter is on appeal from a May 2013 rating decision. The Board remanded this appeal in March 2016 and November 2019 for additional development. In an October 2020 Board decision, the Board denied entitlement to service connection for a thoracolumbar spine disability. The Veteran appealed his denial to the Court of Appeals for Veterans Claims (CAVC or the Court). The Court, in August 2021, issued a decision to vacate and remand the issue back to the Board for re-adjudication. The Board finds that remand is warranted for additional development. The Veteran asserts his thoracolumbar spine disability is related to his active-duty service to include as due to service-connected residuals of shell fragment wounds. The Board notes that the Veteran is currently service connected for residuals of shell fragment wounds to his right thigh, right knee, right calf; left thigh; abdomen; left arm; left leg; left forearm; right forearm; and left upper back. A July 2012 MRI result found evidence of "slight compression on the existing L5 nerves bilaterally due to anterolisthesis of L5 on S1 and disc bulge." In a March 2016 Board decision, the Board noted the Veteran's assertions of his back disability as secondary to his service-connected multiple shell fragment wound residuals and remanded for a VA examination for the nature and etiology of his claimed disability. In a July 2017 VA examination, the examiner noted that diagnostic tests found evidence of moderate multilevel degenerative changes. The examiner did not address this diagnosis and did not provide an aggravation opinion or identify a baseline in their opinion. In a November 2019 Board decision, the Board remanded the appeal for an opinion on the nature and etiology of the Veteran's claimed issue to also consider the July 2012 MRI results. In a January 2020 VA examination, the examiner diagnosed the Veteran with lumbosacral strain and lumbar radiculopathy. The examiner did not find any diagnostic testing had been held for the Veteran's back but did not address the July 2017 VA examination's findings for arthritis nor the July 2012 MRI results specifically. In the August 2021 CAVC decision the Court found the October 2020 Board decision did not address whether the January 2020 examiner complained with prior remand instruction on whether the examiner considered the Veteran's slight nerve compression. The Court also noted that the Board did not comment on whether the Veteran's claimed disability was "related to any of the other service-connected disabilities." The Board notes that the January 2020 VA opinion only addresses the Veteran's service-connected residuals of shell fragment wounds of the left upper back but not the other service-connected residuals of shell fragment wounds of the Veteran's other extremities. As such, the Board finds that remand is warranted to obtain an adequate examination and opinion on the nature and etiology of the Veteran's claimed thoracolumbar spine disability. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. Schedule a VA examination with an appropriate provider to determine the nature and etiology of the Veteran's thoracolumbar disability. The complete record, to include a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. The examiner should respond to the following: (a.) Identify each current thoracolumbar spine disability. If the disability existed during the appeal period but has resolved, this should be made clear. (b.) For each thoracolumbar spine disability identified, whether resolved or active, is it as least as likely as not (a 50 percent or greater probability) the Veteran's thoracolumbar spine disability arose in service or is etiologically related to his military service? If the Veteran is diagnosed with only pain, the examiner must determine whether such results in any functional impairment. (c.) Is it as least as likely as not (a 50 percent or greater probability) the Veteran's thoracolumbar spine disability was caused by or related to the Veteran's service-connected residuals of shell fragment wounds to his right thigh, right knee, right calf; left thigh; abdomen; left arm; left leg; left forearm; right forearm; and left upper back? (d.) Is it at least as likely as not (50 percent probability or more) that the Veteran's thoracolumbar spine disability is aggravated by the Veteran's service-connected residuals of shell fragment wounds to his right thigh, right knee, right calf; left thigh; abdomen; left arm; left leg; left forearm; right forearm; and left upper back? "Aggravation" is defined as any worsening beyond the natural progression of the disability. The examiner should establish a baseline level of disability prior to aggravation. If a baseline cannot be established, the examiner should explain why. (e.) In rendering the requested opinions, the VA examiner should identify and address any relevant medical and lay evidence to include the July 2012 MRI; the July 2017 VA examination and diagnostic test, and January 2020 VA examination findings; and the statements made by the Veteran in February 2013, June 2013 notice of disagreement, and at the July 2017 and January 2020 VA examinations. (f.) The examiner is advised that the Veteran is competent to report in-service events and treatment, and the Veteran's symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. (g.) If the VA examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. A clearly stated rationale for any opinion offered should be provided. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Yang, 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.