Citation Nr: 21007641 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 14-28 582A DATE: February 10, 2021 REMANDED Entitlement to service connection for the Veteran’s lumbar spine disability, to include degenerative disc disease, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1965 to August 1968, August 1968 to August 1972, and August 1976 to September 1991. This matter comes before the Board of Veteran’s Appeal (Board) on appeal from a February 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded in June 2018 for additional development. The case has now returned to the Board for appellate review and, although it again regrets further delay, the Board finds that additional remand is required. Separately, in a written statement received in October 2012, the Veteran raised a motion asserting clear and unmistakable error in the December 1991 rating decision that denied his claim for service connection for a back disability. As this statement was received prior to the regulatory amendment prohibiting the acceptance of informal claims, the matter of whether to revise the December 1991 rating decision that denied service connection for the Veteran’s lumbar spine disability, based on clear and unmistakable error (CUE), is referred to the Agency of Original Jurisdiction for appropriate action. Entitlement to service connection for the Veteran’s lumbar spine disability, to include degenerative disc disease, is remanded. In June 2018, the Board remanded this case to obtain a new VA examination and medical opinion that addressed the Veteran’s in-service treatment for his lower back pain and whether the Veteran's degenerative disc disease (DDD) was aggravated by his service-connected orthopedic disabilities. Pursuant to the June 2018 remand directives, a VA examination was conducted in October 2019. The October 2019 VA examiner opined that it was less likely than not that the Veteran’s DDD was caused or aggravated to any degree by his military service. See October 2019 VA Examination. The examiner also opined that it was less likely than not that the Veteran’s DDD was caused or aggravated by his service-connected orthopedic disabilities. Id. In support of these conclusions, the examiner stated that it is a myth that work-related cumulative trauma results in DDD, and these cases account for 3 percent or less of conditions. The examiner cited to the AMA Jul/Aug 2009 Guides Newsletter to support this conclusion but failed to specifically address why the Veteran’s DDD is not a result of work-related cumulative trauma (in other words, why the Veteran could not be found to be among the 3 percent). With regard to work related trauma, the Veteran stated that his low back pain was due to prolonged standing, driving tractor rigs, heavy lifting, refueling valves, and climbing 75 feet fuel storage tasks. See July 2020 Correspondence. However, the examiner failed to apply the medical principles to the facts of the Veteran's case. A medical text must do more than provide speculative generic statements about a disability or the relationship between a disability and purported causal factors. Wallin v. West, 11 Vet. App. 509, 514 (1998). Further, the January 2013 and October 2019 examiners both cited to the same AMA Guides Newsletter, which noted that individuals may complain of low back pain from strenuous activity from a young age, but that does not mean it is the cause of degenerative changes that occur between 40 and 60 years and older. See VA Examinations date January 2013 and October 2019. However, neither examiner addressed whether the Veteran’s degenerative changes occurred in service, which is relevant as the Veteran was 44 years old when he retired. See Veteran’s DD 214. In sum, neither examiner applied the medical principles from this medical text to the Veteran’s case. Lastly, the October 2019 VA examiner’s rationale did not address the Veteran’s in-service receipt of pain prescriptions for his lower back pain and whether this treatment was related to the later development of DDD. Therefore, the Board finds that the October 2019 opinion is inadequate for adjudicative purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 305 (2008). Based on the foregoing deficiencies, an addendum opinion is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The addendum opinion should give specific consideration to the Veteran’s theory of the case—that is, low back pain due to prolonged standing, driving tractor rigs, heavy lifting, refueling valves, and climbing 75 feet fuel storage tasks, led or contributed to the development of DDD. See July 2020 Correspondence. The VA examiner should also address whether the Veteran’s muscle strain persisted throughout service and resulted in the Veteran’s DDD diagnosis. In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran’s lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran’s own descriptions of the history of his lumbar spine disability. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: 1. The AOJ should send the claims file to an appropriate VA examiner who has not previously participated in this case for an addendum opinion as to whether the Veteran’s DDD is related to service. The claims file, including a copy of this Remand, must be made available to and be reviewed by the examiner in conjunction with the examination. If a clinical evaluation is deemed necessary to answer the questions presented, one should be scheduled. The claims file, and a copy of the remand, must be reviewed by the examiner. A notation indicating that the claims file and remand was reviewed should be included in the examination report. Following review of the file and this remand, the examiner is to address the following: (a.) For each diagnosed lumbar spine condition, the examiner(s) should state whether it at least as likely as not that the condition (1) began during any period of active service, (2) manifested within a year after discharge from active service, (3) was noted during service with continuity of the same symptomatology since service, or (4) was related to any other aspect of the Veteran's service. In providing a response to Part (3), please directly address whether the low back sprain or strain diagnosed in the April 1974 Service Treatment Record persisted throughout the Veteran’s service, as he has asserted. In providing the foregoing opinions, please review the Veteran’s Service Treatment Records dated April 1974, August 1976, June 1977, January 1979, October 1980, November 1986, and March 1988 in providing the foregoing opinion. In further providing a response to Part (3), please directly address the following: (i) the fact that the Veteran separated from active duty service at the age of 44 (and thus whether he is likely to have begun to develop degenerative changes of the spine prior to his separation from service), and (ii) the AMA Guides Newsletter Jul/Aug 2009 study referenced in the October 2019 VA examination regarding the development and onset of DDD. In addressing the AMA Guides Newsletter, please address whether the Veteran’s DDD is related to work related cumulative trauma. In providing a response to Part (4), please also address whether it is at least as likely as not the Veteran’s DDD was caused by his service-connected orthopedic conditions, or whether it is at least as likely as not that the Veteran’s DDD was aggravated by his service-connected orthopedic conditions. Here, aggravated means worsened beyond the natural progression of the condition. In providing a response to Part (3), please directly address, whether the prescriptions of muscle relaxants and Indocin in service for pain in service were related to the Veteran’s later development of DDD. The examiner must opine whether the Veteran’s DDD or any other diagnosed lumbar spine disability is at least as likely as not (a probability of 50 percent or greater) related to an in-service injury, event, or disease, including complaints of low back pain due to prolonged standing, driving tractor rigs, lifting heavy, refueling valves, and climbing 75 feet fuel storage tasks. For the purpose of providing the opinion requested, please accept as valid the Veteran’s statements that he has experienced back pain since service, and state whether a nexus between the Veteran’s lumbar spine disability and service is medically consistent with the information provided by the Veteran. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements). A complete rationale for the opinions rendered must be provided. If an examiner cannot provide the requested opinions without resorting to speculation, s/he should expressly indicate this and provide a supporting rationale as to why that is so. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.Foster 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.