Citation Nr: 21006686 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-02 865 DATE: February 4, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty and inactive duty for training in the Army National Guard from 1972 to 1995 and served on active duty from July 1972 to December 1972. This appeal comes to the Board of Veterans’ Appeals (Board) from a March 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a May 2019 hearing. The Board denied the Veteran’s claim in an October 2019 decision, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). In September 2020, CAVC granted a Joint Motion for Remand (JMR), vacating the Board’s decision and remanding this matter to the Board for additional evidentiary development according to the JMR. The JMR indicates the August 2015 VA medical opinion the Board relied upon is inadequate. It notes the opinion is not supported by adequate rationale and does not adequately address the Veteran’s claim based on aggravation of a back condition by the Veteran’s service-connected disabilities. The JMR notes remand is warranted for a new opinion to include an adequate rationale from the examiner. It indicates the examiner shall also opine as to the issue of direct service connection for the back condition as well as to whether the back condition was proximately due to or the result of his service-connected disabilities. It also indicates the examiner should adequately address and consider: (1) the Veteran’s 23 years spent (1972-1995) in the Army National Guard including records showing complaints of back issues, (2) a November 24, 2001, Consultation Sheet documenting surgery on the back in the summer of 2000, and (3) a diagnosis of degenerative or arthritic changes in 2001. The JMR also notes that VA should attempt to obtain outstanding records including private records from Dr. L. at Rose Hill, a doctor in Greenville, and a pain doctor in Wilmington. On remand, the Agency of Original Jurisdiction (AOJ) should obtain an opinion from an appropriate medical professional addressing the deficiencies noted above after associating all outstanding relevant records identified by the Veteran with the claims file. The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records to include outstanding VA treatment records as well as private records from the Veteran’s private providers including Dr. L. at Rose Hill, a doctor in Greenville, and a pain doctor in Wilmington. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran’s claims file. 2. After associating all outstanding records with the Veteran’s claims file, the AOJ should obtain an additional opinion from an appropriate medical professional addressing the deficiencies noted in the JMR CAVC granted in September 2020. The AOJ should provide the examiner with a complete copy of the claims file to include this remand order. The AOJ should ensure that the examiner follows these directives: (a.) The VA examiner should identify all current disabilities associated with the Veteran’s claimed back disabilities to include degenerative changes and functional limitations due to pain. (b.) For each current disability identified, the examiner should opine whether the disability at least as likely as not first manifested during or was otherwise caused by the Veteran’s military service. The examiner should explain why or why not. The examiner must adequately address and consider: (1) the Veteran’s 23 years spent (1972-1995) in the Army National Guard including records showing he complained of back issues, (2) a November 24, 2001, Consultation Sheet indicating the Veteran had surgery on his back in the summer of 2000, and (3) the Veteran’s diagnosis of degenerative or arthritic changes in 2001. (c.) In regarding to diagnoses of arthritis, the VA examiner should opine whether it is at least as likely as not that the Veteran’s arthritis manifested to a compensable degree (e.g. any functional limitation due to pain) within one year of the Veteran’s separation from a period of active duty service. (d.) For each current disability identified, the examiner should opine whether the disability was at least as likely as not worsened beyond normal progression (aggravated permanently or temporarily) by the Veteran’s service-connected disabilities to include disabilities of the right thumb, knees, hips, and thighs. (e.) If the examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion 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). 3. After completing the above action and any other necessary development, the claim must be readjudicated. If the claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representatives. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Duffy, 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.