Citation Nr: 21074528 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 10-15 861 DATE: December 15, 2021 REMANDED Entitlement to service connection for a back disability (to include degenerative disc disease (DDD), intervertebral disc syndrome (IVDS), scoliosis, lumbar radiculopathy, mechanical back pain, and spondylosis) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1976 to September 1979. In September 2010, the Veteran testified before the Board via video conference hearing. A transcript of this hearing is of record. The Veterans Law Judge who conducted the hearing is no longer employed by the Board and the Veteran was notified of his right to a new hearing in April 2016. The Veteran initially requested a new hearing, but later withdrew his request in writing through a November 2018 Statement in Support of Claim. 1. Entitlement to service connection for a low back disability The Board most recently remanded the Veteran's appealed issue in November 2019 for further development. For the reasons discussed below, the Board concludes that there has not been substantial compliance with the remand directives, and thus, another remand is necessary. Stegall v. West, 11 Vet. App. 268 (1998). Pursuant to the November 2019 Board remand, the Veteran was afforded a July 2021 VA examination to address the nature and etiology of his back disability. The examiner diagnosed the Veteran with DDD, IVDS, scoliosis, and lumbar radiculopathy. However, the examiner did not identify the Veteran's diagnosed mechanical back pain or spondylosis, previously identified at the April 2011 and September 2009 VA examinations. The November 2019 Board remand directed the examiner to determine if the Veteran's pre-existing scoliosis permanently increased in severity during service. The examiner opined that, during service, there was no evidence of "worsening" with respect to the scoliosis' degree of curvature. The examiner also noted that the scoliosis, "which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." However, the examiner failed to consider the credible lay evidence of in-service and post-service treatment submitted by the Veteran and his friends. The November 2019 Board remand also directed the examiner to provide nexus opinions on each diagnosed back disability. Although the examiner did not identify the Veteran's diagnosed mechanical back pain as a disability, the examiner opined that the Veteran's "mechanical back pain was less likely than not incurred in or caused by the claimed in-service injury, event, or illness." The examiner did not provide a nexus opinion on any other diagnosed back disability. Furthermore, the examiner was specifically asked to determine the likely etiology of the Veteran's left axillary radiculopathy. The examiner noted that the Veteran's radiculopathy symptoms are possibly due to his DDD and nerve root compression. Although the examiner noted that the Veteran's DDD is "likely the cause" of the Veteran's current back pain, the examiner did not determine whether his DDD disability is due to the Veteran's active-duty service. In view of above, another remand is necessary to identify all low back disabilities present during the appeal period and obtain medical opinions regarding the etiology of each such disability. The matters are REMANDED for the following action: 1. The Veterans Benefits Administration (VBA) must request that the Veteran be scheduled for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and likely etiology of any back disabilities, to include degenerative disc disease (DDD), intervertebral disc syndrome (IVDS) scoliosis, lumbar radiculopathy, mechanical back pain, and spondylosis. Copies of all pertinent records must be made available to the examiner for review. The examiner is asked to provide a response to the following: (a) Identify all diagnosed back disabilities. (b) Did any diagnosed back disability clearly and unmistakably (i.e., it is undebatable) exist prior to his active service? In conducting this examination, the examiner should accept as fact that the Veteran had pre-existing scoliosis at the time he entered military service in September 1976. (c) If the answer to (b) is yes, does the evidence clearly and unmistakably show (i.e., it is undebatable) that the respiratory disability was not aggravated by service or that any increase in disability was due to the natural progression of the condition? Please identify such evidence with specificity. (d) If the answer to either (b) or (c) is no, is it at least as likely as not that a diagnosed back disability had its onset in or is otherwise related to service? In offering an opinion on each disability, the examiner must consider the following: (i) in-service treatment for back pain and post-service back pain as supported by the Veteran's and his friends' lay statements; and (ii) the Veteran's testimony that he was seen multiple times during service for his back pain. The examiner must also comment on the radiating pain from the left axillary region noted in the Veteran's Service Treatment Records (STRs) and offer an opinion as to whether these in-service occurrences are related to any back condition noted during the period on appeal (March 20, 2009 to present). The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made. 2. Thereafter, the AOJ must readjudicate the Veteran's appealed issues in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his representative with a copy of the readjudication and afford them an appropriate period to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. E. Bresler 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.