Citation Nr: 21010281 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-37 632 DATE: February 24, 2021 REMANDED Entitlement to service connection for degenerative arthritis of the spine is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from March 1981 to March 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The claim was before the Board most recently in November 2019, at which time the Board remanded the claim to the agency of original jurisdiction (AOJ) to obtain a nexus opinion supported by an adequate rationale. For the reasons discussed below, the Board finds that there has not been substantial compliance with the directives of its November 2019 remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for degenerative arthritis of the spine is remanded. Although it regrets the additional delay, the Board finds that another remanded is warranted in order to procure nexus opinion supported by an adequate rationale. As an initial matter, the Board notes that a November 2012 formal finding determined that the Veteran’s service treatment records are unavailable. See VA memorandum labelled “Administrative Decision,” dated November 6, 2012. In cases where service records are unavailable, VA has a heightened obligation to explain its findings and to consider the benefit-of-the-doubt rule. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). This is not to say that there is a heightened benefit-of-the-doubt rule. Rather, VA has a heightened duty to consider the applicability of the benefit-of-the-doubt rule, to assist the claimant in developing a claim, and to explain its decision when the veteran’s service medical records are not available. See Ussery v. Brown, 8 Vet. App. 64 (1995). The record reflects that the Veteran furnished a medical opinion from a private physician, which suggests that the Veteran’s degenerative arthritis of the spine may have been caused by the physical demands of the Veteran’s military service. See private medical opinion dated January 3, 2013. However, this opinion is speculative and is not supported by an adequate rationale for the conclusion reached. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”); Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (holding that a doctor’s statement that a veteran’s brain tumor “may well be” connected to Agent Orange exposure was speculative); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the use of the term “could,” without other rationale or supporting data, is speculative). The Veteran was afforded a VA examination for his claimed back disability in February 2013. At that time, an examiner confirmed the Veteran’s diagnosis of lumbar spondylosis and opined that the lumbar spine degenerative changes experienced by the Veteran were less likely than not caused by an in-service injury. See VA examination dated February 8, 2013. The examiner reasoned that, due to the absence of medical evidence demonstrating any back disorders prior to the early 2000s, he was unable to state that the Veteran’s back disability was caused by his service. Pursuant to the Board’s November 2019 remand, the AOJ obtained another medical opinion regarding the etiology of the Veteran’s back disability. In a March 2020 opinion, a clinician reviewed the Veteran’s claims file and opined that the Veteran’s degenerative disc disease is less likely than not related to his active duty service, reasoning that the disorder likely developed in the 2000s rather than in the mid-1980s when the Veteran was on active duty service. See medical opinion dated March 2, 2020. However, the clinician did not address the January 2013 medical opinion suggesting that the physical labor required of the Veteran during his active duty military service led to the eventual development of his degenerative arthritis of the spine. Additionally, the clinician did not consider the Veteran’s lay assertions concerning a continuity of symptomatology since service. Therefore, the opinion is inadequate for adjudicative purposes. The Board must ensure compliance with the terms of its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders). As the record does not contain a medical opinion, supported by an adequate rationale, that addresses the favorable medical evidence from January 2013 as well as the Veteran’s statements asserting a continuity of symptomatology since service, a remand is required before the Veteran’s appeal can be properly adjudicated on its merits. Accordingly, the matter is REMANDED for the following action: 1. Send the Veteran’s claims file to an appropriate clinician for review and for the opinions sought regarding the Veteran’s claim for service connection for degenerative arthritis of the spine. ONLY IF another examination is deemed necessary to answer the questions below, one should be scheduled. The clinician is asked to address the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s degenerative arthritis of the spine is etiologically related to the Veteran’s active duty military service? The clinician is asked to consider, and discuss as necessary, the long-term effects of rigorous physical activity on the Veteran’s back. It should be noted that the phrase “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is evenly divided and that, in the clinician’s opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The clinician should take into consideration that the Veteran is competent to report in service and post-service symptomology. The clinician is specifically asked to address the Veteran’s assertion that his back problems began on active duty service and have gradually worsened over time, as well as the January 2013 medical opinion suggesting that the physical demands of the Veteran’s active duty service led to the subsequent development of his degenerative arthritis of the spine. The clinician is reminded that an absence of prior medical documentation of symptoms or treatment is not, per se, a sufficient basis upon which to find the lack of an association between a current disability and an in-service event or injury. (Continued on the next page)   A clear rationale for all opinions expressed would be helpful; and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Tolbert, 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.