Citation Nr: 21007057 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 18-12 496 DATE: February 8, 2021 REMANDED Entitlement to service connection for a spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1986 to October 1986. This case has a long procedural history. This matter is before the Board of Veterans’ Appeals (Board) on a March 2020 remand order issued by the United States Court of Appeals for Veterans Claims (Court) on a Joint Motion for Remand (JMR) by the Veteran and the Department of Veterans Affairs (VA) (the parties) with regard to a May 2019 Board decision that addressed a VA Regional Office (RO) February 2015 rating decision. In the JMR, the Court found, inter alia, the May 2019 Board decision did not provide a sufficient discussion on how it reached its determination. Specifically, The Court stated that, “the Board found that Appellant was diagnosed with spondylosis L5, S1, due to spina bifida occulta in an examination on Oct 1, 1986....” while the STRs do not reflect this finding. The October 1986, Entrance Physical Standards Board Record states: “Laboratory and x-ray results: x-rays - consistent with spondylolysis L5, S1. Spina Bifida Occulta. Diagnosis: Spondylolysis.” Although one could probably infer from the record that the spondylolysis was due to Veteran’s spina bifida occulta, the Board’s determination was too conclusory because such a medical finding is not within that document nor any other medical document of record. The Court vacated the May 2019 Board decision and remanded the matter for the Board to consider the relationship between spondylolysis and spina bifida. The parties to the JMR agreed, and the March 2020 Court decision adopted the parties’ position, that the Board erred in finding that VA’s duty to assist was satisfied. VA has a duty to assist a claimant in “providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim.” 38 U.S.C. § 5103A(d)(1). Once the Secretary undertakes the effort to provide an examination, he must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). “A medical examination is adequate when it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.” Id. at 310-311. The May 2019 Board decision relied upon an inadequate January 2018 VA examination. Accordingly, the Court ordered a new VA medical opinion be obtained. In the September 2020 Board decision, the Board remanded this matter to implement the JMR by requesting further development and the Veteran was afforded a VA examination in November 2020. In the December 2020 Statement in Support of Claim, the Veteran’s agent asserts that the Veteran’s claim should be granted on a presumptive basis because the Veteran manifested a chronic condition (arthritis) while on active duty. He contends that no clear and unmistakable evidence exists to rebut presumption of soundness since no back condition was noted on the entrance exam. In the November 2020 VA examiner’s report, the examiner stated that the Veteran’s pre-existing spinal bifida occulta (SBO) did not superimpose any back injury and that the Veteran’s arthritis did not manifest while on active duty because of his short time in military service concluding it must have previously existed. The Veteran’s agent contends there is insufficient evidence to rebut both presumption of soundness and presumption of chronic condition. The November 2020 examiner diagnosed the Veteran as having degenerative arthritis of the spine, vertebral fracture, and SBO. The examiner did not provide an opinion on the relationship between spondylolysis and SBO. While the Veteran’s July 1986 enlistment examination does not note any back defects, on the Veteran’s first day of active duty in August 1986, the Veteran reported to his in-service medical treating practitioner that the he had an injury to his back as a result of playing sports that existed prior to service. Statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment. White v. Illinois, 502 U.S. 346 (1992). The in-service medical practitioner noted that the Veteran was “not evaluated prior to entry.” On the first day of active duty, according to the August 1986 STRs, the Veteran had an x-ray that showed that his back condition was consistent with spondylolysis and SBO. The Board notes that the November 2020 VA opinion does not contain any information as to whether under the clear and unmistakable standard the Veteran’s spondylolysis preexisted or arose during the two months the Veteran was in-service. Likewise, the examiner does not opine on the relationship between spondylolysis and SBO. Moreover, the examiner opined that the Veteran’s degenerative changes existed prior to enlistment, but did not provide a sufficient rationale explaining why. Similarly, the examiner did not opine whether the Veteran’s arthritis preexisted service and whether the arthritis is as likely as not related to service. Finally, as explained above, the Veteran reported to his in-service medical practitioner that he experienced a back injury pre-service. If the examiner finds that any back condition preexisted service, then the examiner needs to opine whether such condition is as likely as not aggravated in-service. Accordingly, the Board finds this matter must be remanded to obtain such medical opinions. While the Board regrets the delay, a remand for further development is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with the November 2020 VA examiner or, if the November 2020 VA examiner is not available, with an appropriate examiner, in order to obtain an addendum opinion as to the nature and etiology of the Veteran’s spine disability. 2. Provide the examiner the Veteran’s complete claims file, including the March 2020 Court decision, the September 2020 Remand and this Remand, for review. The examination report should reflect that such review was accomplished. 3. The examiner should interview and examine the Veteran. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinions. 4. Based on review of the record and examination of the Veteran, and after eliciting a detailed history of the Veteran’s conditions from the Veteran, the examiner is requested to: a. Identify any and all current diagnoses of the spine, including an opinion of whether the Veteran has or has had the following diagnoses: degenerative arthritis of the spine, vertebral fracture, spondylolysis, and spinal bifida occulta. b. For each diagnosis, state whether it clearly and unmistakably (undebatable) preexisted service. In addition to any other diagnoses of the spine, the examiner should specifically opine on whether the spondylolysis at L5 and S1, diagnosed in service on October 1, 1986, clearly and unmistakably preexisted service. c. For each diagnosis, if the examiner finds it did clearly and unmistakably preexisted service, was it clearly and unmistakably not aggravated by service? If the examiner finds that the spina bifida occulta clearly and unmistakably preexisted service and was clearly and unmistakably not aggravated by active service, the examiner should explain his/her finding that the diagnosis of spondylolysis at L5 and S1 during active service does not represent aggravation of the preexisting SBO. d. For each diagnosis, if the examiner finds it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not (50 percent probability or greater) related to service. e. Opine on the relationship, if any, between the spondylolysis and spinal bifida occulta. f. Did the Veteran’s back condition from a sports injury that the Veteran reported preexisted service, as noted in the August 1986 service treatment records which was the Veteran’s first day on active duty, at least as likely as not increase in severity during service? If so, was the increase in severity clearly and unmistakably (undebatable) due to the natural progress of a disease? 5. A reasoned rationale supporting the examiner’s conclusions must be provided for any and all opinions offered. All appropriate studies and consultations should be accomplished, and all clinical findings should be reported in detail. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence or information might allow for a more definitive opinion. 6. After completing the foregoing and any other development necessary, readjudicate the Veteran’s claim. 7. If any benefit sought on appeal remains denied, a Supplemental Statement of the Case (SSOC) should be furnished to the Veteran and his representative, and he should be afforded a reasonable opportunity to respond. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Agarwal. 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.