Citation Nr: 21011133 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-45 292 DATE: March 1, 2021 REMANDED Entitlement to service connection for degenerative disc disease (DDD) of the spine is remanded. REASONS FOR REMAND The Veteran had a period of initial active duty for training from November 1981 to March 1982 and was a member of the Army National Guard (ARNG) from April 1981 to April 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). This case was before the Board in February 2020, and was remanded for further development. Unfortunately, for the reasons set forth below, another remand is required. 1. Entitlement to service connection for degenerative disc disease (DDD) of the spine is remanded. The Board is obligated to ensure AOJ compliance with remand directives. Stegall v. West, 11 Vet. App. (1998). The February 2020 remand required the AOJ to obtain a medical opinion addressing certain evidence in the claims file, and included specific directives regarding the Veteran’s contentions. Specifically, the examiner was to address the Veteran’s competent reports of back pain multiple times per week during his time in the ARNG, including during drills and training, and that he did not lift heavy weights or injure his back as a civilian. The March 2020 examiner based the negative nexus opinion on the lack of medical documentation or diagnosis prior to 2014, and a finding that the Veteran worked a civilian job requiring heavy lifting, which indicates that the examiner did not consider or address the Veteran’s competent testimony. Additionally, the examiner wrote, “degenerative disc disease is a result of wear and tear,” but did not indicate whether, as the Veteran contends, his back disability is etiologically related to wear-and-tear or heavy lifting over time during service. Finally, the examiner opined that the Veteran’s obesity and body habitus contributed to his DDD, and did not discuss, as explained in the Board’s February 2020 remand, that the Veteran did not meet height-weight standards in October 2000. Furthermore, the Veteran’s representative has advanced additional contentions that need to be addressed. First, the Veteran’s representative argues that the Veteran’s multiple sclerosis (MS) manifested itself during service, as evidenced by the facts that symptoms appear in a person’s 20s and 30s, even if not diagnosed at that time, and the numbness and tingling the Veteran experienced after his back injury that was determined not to be radiculopathy, and the Veteran’s MS and demyelination meant that his back trauma did not heal or took longer to heal, and made it easier or caused the Veteran to keep reinjuring himself with the wear-and-tear of his MOS. Second, the representative argues that the conclusion that the Veteran had an acute and transitory back injury is flawed because the symptoms improved, but the underlying chronic condition was developing and persisted, as evidenced by the Veteran’s testimony of persisting pain. A remand is necessary for an adequate opinion addressing the identified contentions and evidence. The matters are REMANDED for the following action: 1. Obtain a supplemental opinion from an appropriate VA examiner to determine the etiology of the Veteran’s back disability. Following review of the record, the examiner should respond to the inquiry below. If the examiner determines that he or she cannot respond to the Board’s inquiry as set forth in detail below without examination of the Veteran, the Veteran should be afforded such an in-person examination, or by other means if an in-person examination is not feasible. If an examination is conducted, any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner should address the following: (a.) The examiner shall consider and address the Veteran’s competent testimony and reports of: repeatedly lifting hundreds of pounds over time as part of his MOS; back pain multiple times per week, including during training; lack of back injuries as a civilian; and not lifting weights as heavy as a civilian as those required for his MOS. (b.) The examiner must directly address the Veteran’s contention that he developed a back disability, as evidenced by his pain during drills and training in the ARNG, because of the wear-and-tear of repeatedly lifting hundreds of pounds over time as part of his MOS. (c.) The examiner must address the Veteran’s representative’s arguments that: 1) the Veteran’s MS manifested itself during the Veteran’s time in the ARNG, as evidenced by the facts that symptoms appear in a person’s 20s and 30s, even if not diagnosed at that time, and the numbness and tingling the Veteran experienced after his back injury that was determined not to be radiculopathy; 2) the Veteran’s undiagnosed and untreated MS and demyelination meant that his back trauma did not heal or took longer to heal, and made it easier or caused the Veteran to keep reinjuring himself with the wear-and-tear of his MOS; and 3) the conclusion that the Veteran had an acute and transitory back injury is flawed because even though the symptoms improved, an underlying chronic condition was developing and had persisted, as evidenced by the Veteran’s testimony of persisting pain. (d.) The examiner must review the April 2016 and March 2020 VA opinions attributing the Veteran’s disability, in part, to obesity, and address the Veteran’s military personnel records indicating that in October 2000, the Veteran did not meet height-weight standards with a body fat percentage of 33 percent and weight of 258 pounds. (e.) The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s back disability manifested during service, or is otherwise etiologically related to or caused by a qualifying period of service. (Continued on the next page)   A complete rationale for any opinion expressed must be provided. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Smith, 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.