Citation Nr: 21008658 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-36 890 DATE: February 17, 2021 ISSUE Entitlement to service connection for a low back disorder, to include degenerative disc disease (DDD), to include as secondary to the Veteran’s service-connected right ankle disability. REMANDED Entitlement to service connection for a low back disorder, to include DDD, to include as secondary to the Veteran’s service-connected right ankle disability is remanded. REASONS FOR REMAND The Veteran served a period of active duty for training (ACDUTRA) in the United States Army Reserves from February 2009 to September 2009. This period of service constitutes “active military service” for VA purposes as the Veteran was disabled from disease or injury incurred or aggravated in the line of duty during that period. 38 C.F.R. § 3.6 (a) (2017). Service connection is already in effect for other disabilities on this basis, therefore her Veteran status is established. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to the benefit currently sought on appeal. The Veteran appeared before the undersigned Veterans Law Judge in a videoconference hearing in July 2015 to present testimony on the issue on appeal. A copy of the transcript is of record. When this case was previously before the Board in December 2019, it was remanded for additional evidentiary development. It has since been returned to the Board for further appellate action. In response to the Board’s remand, a February 2020 VA-contracted opinion was obtained in which the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated in pertinent part that there was no service treatment record entry regarding low back pain; the Veteran had a workup for low back pain in 2012, with MRI showing DDD and degenerative joint disease. The examiner stated that there was no record of treatment prior to 2012. Therefore, it was less likely than not that the Veteran's back condition arose during service. The Board notes that in May 2009, during her period of ACDUTRA, the Veteran reported back pain, and private treatment records show treatment regarding the back prior to 2012 (to include but not limited to) in December 2010 and January 2011. The February 2020 examiner also opined that the back condition was not at least as likely as not aggravated beyond its natural progression by the service-connected ankle condition; however, the examiner did not address the November 2014 private medical opinion as instructed by the Board. As such, the Board finds that an addendum is warranted on remand. Moreover, as previously noted by the Board, the Veteran submitted a private medical opinion letter dated November 11, 2014. To afford this issue procedural due process, the Board found that a remand was required for the AOJ to consider this evidence. Subsequently, the AOJ issued a supplemental statement of the case in May 2019 and August 2020; however, this evidence was not listed nor discussed. As such, this issue is again remanded for consideration of the private medical opinion letter dated November 11, 2014. The matters are REMANDED for the following action: 1. Provide access to the electronic claims file to the February 2020 examiner, or appropriate substitute if this individual is not available, to provide addendum opinions regarding the claimed low back disorder, to include DDD. The electronic claims file must be made available to and reviewed by the examiner. An examination should be performed if deemed necessary by the examiner providing the requested opinion. The examiner should address the following: Opine whether it is at least as likely as not (50 percent probability or greater) that any low back disorder, to include DDD, diagnosed during the pendency of this appeal: a) had its onset in service or is otherwise etiologically related to service, to include documented complaints of back pain in May 2009 or; b) was caused or aggravated (permanently worsened) by the Veteran’s service-connected right ankle sprain condition. The examiner should address the November 2014 private medical opinion. A full and complete rationale for all opinions expressed must be provided. 2. Upon completion of the addendum opinion ordered above, review the opinions to ensure that they address the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim on appeal. If any benefit sought on appeal remains denied, the RO must furnish the Veteran with an appropriate supplemental statement of the case, to include evaluation of the private medical opinion letter dated November 11, 2014, and afford a reasonable opportunity for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., 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.