Citation Nr: 21074124 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-27 982 DATE: December 14, 2021 REMANDED Entitlement to service connection for lumbar spine condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from June 1966 to June 1968. The issue was remanded by the Board of Veterans' Appeals (Board) in March 2020 and January 2021 for further development. The most recent remand in January 2021 specifically instructed the regional office (RO) to obtain a medical opinion pertaining to the Veteran's claim. As an initial matter, the Board notes that the Veteran testified at a travel board hearing before a Veterans Law Judge (VLJ) in April 2019 and a copy of the hearing transcript has been associated with the electronic claims file. See April 2019 Hearing Transcript. In October 2021, the Veteran was notified that the VLJ who conducted the April 2019 hearing was no longer with the Board and was asked whether he desired to have another hearing. See October 2021 BVA Letter. The Veteran did not respond within 30 days of the letter so the Board will consider the case on the evidence of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(a)(2). Upon review of the record, the Board finds that the claim must be remanded. The Board sincerely regrets the additional delay caused by this remand, particularly as this matter has been the subject of prior remands, but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claim. Entitlement to service connection for lumbar spine condition is remanded. The Board finds that a new etiological opinion is warranted for the Veteran's claim. The Veteran contends that his lumbar spine condition is related to his service. The Veteran underwent a VA examination in August 2021, in which the examiner diagnosed the Veteran with degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome, and spinal stenosis. The August 2021 examiner opined that the Veteran's lumbar spine condition was less likely than not related to service. In support of his opinion, he noted that he did not feel a chronic and relapsing back condition was known during service as evidence pointed to other traumatic events. The examiner noted that the Veteran was 74 years old and had experienced a lifetime of age-related changes that better explained his degenerative disease. Additionally, he noted that consideration was given to known prior back injury before service and the Veteran's story of being thrown from a vehicle while in combat. First, the Board finds that the examination and opinion do not substantially comply with the Board's January 2021 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Unfortunately, the August 2021 examiner gave consideration to the Veteran's back injury prior to service despite the Board's instruction that the Veteran was asymptomatic and free of any back disability when he entered service. Second, despite noting numerous risk factors that likely caused the Veteran's lumbar spine condition, the August 2021 examiner ultimately based his negative opinion on finding that the Veteran's in-service lumbar spine issues were not chronic and relapsing. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Accordingly, a remand is necessary to obtain a new medical opinion to ascertain the nature and etiology of the Veteran's lumbar spine condition. The matters are REMANDED for the following action: 1. With the Veteran's help as appropriate, associate with the claims file any relevant outstanding treatment records. 2. Obtain an opinion from an appropriate examiner to determine the nature and etiology of the Veteran's lumbar spine condition. The claims file should be made available to the examiner for review in connection with the examination. The Veteran should be contacted, and an examination scheduled, if the examiner deems it necessary for a complete and well-informed opinion. Based on review of the record, the examiner should respond to the following: (a.) State whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's lumbar spine condition had its onset in or is related to service, to include carrying heavy loads and being thrown from a truck. The examiner must take as fact and specifically discuss: While the Veteran reported intermittent back pain prior to service, he was asymptomatic and free of any back disability when he entered service; The Veteran had back pain during service that is not recorded in the service treatment records, to include carrying heavy loads and being thrown from a truck. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. L. Park, Associate 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.