Citation Nr: 21011187 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 12-16 227 DATE: March 1, 2021 REMANDED Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected cervical degenerative disc and joint disease, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1974 to October 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran appeared at a Board hearing via videoconference in February 2013 before the undersigned Veterans Law Judge. 1. Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected cervical degenerative disc and joint disease, is remanded. Though the Board regrets additional delay, remand is required for an adequate VA examination opinion. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. Additionally, in a secondary service connection claim, a medical opinion that a disorder is not the result of an already service-connected disability does not address the issue of aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Following a June 2019 Board remand, the Veteran was provided with a VA examination in December 2019. In this examination the examiner determined that the Veteran’s lumbar spine condition was less likely than not caused by his service-connected cervical spine condition. The examiner acknowledged the Veteran’s in-service fall down a hatch but found that the STRs did not note any back pain following the accident. The examiner also noted that the STRs were silent for any kind of lumbar spine condition. The examiner then found that it was less likely than not that the Veteran’s lumbar spine condition manifested within one year of discharge from service as there are no medical records regarding the lumbar spine until 2010. The Board finds this examination to be inadequate. First, in the June 2019 Board decision, the directives stated that the examiner was to provide a direct service connection opinion, as well as a secondary service connection opinion. In the December 2019 examination, the examiner was only prompted to provide a secondary service connection opinion. Further, the examiner was only prompted to provide a secondary service connection opinion regarding causation, and not aggravation. As a result, the examiner did not provide a direct service connection opinion, or an aggravation opinion as directed by the previous Board remand. Second, despite being prompted to provide a secondary service connection opinion, the examiner seemed to instead provide rationale for a direct service connection opinion. The examiner’s nexus opinion was that the Veteran’s lumbar spine condition was not proximately caused by his service-connected cervical spine condition. However, her opinion is supported by the rationale that there was no medical documentation of a lumbar spine condition following the in-service fall. The examiner did not provide any explanation or information regarding the relationship between the Veteran’s cervical and lumbar spine disorders. As a result, the examiner’s rationale does not adequately support her nexus statement. The rationale itself is also inadequate as it relied solely on the absence of documentation in the STRs to deny nexus. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (examination inadequate where the examiner relied on lack of evidence in service treatment records to provide negative opinion). Finally, the examiner failed to follow several of the remand directives provided in the June 2019 Board remand. The examiner was directed to address the Veteran’s competent lay statements regarding the onset of his lumbar spine condition and the Veteran’s post-service treatment records to include the March 2009 x-rays of the Veteran’s spine. The examiner did not address this evidence in providing her opinion, therefore remand is required for an adequate VA examination opinion that corrects these inadequacies. The matters are REMANDED for the following action: 1. Provide the Veteran with an appropriate examination to determine the etiology of his lumbar spine disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each lumbar spine disorder had onset during service or is otherwise related to active service, including a September 1977 accident where he reported falling approximately 25 feet down 3 flights of stairs while on a Navy ship with treatment for loss of consciousness, lacerations to his right scalp and left eyebrow, and a hematoma to the left forearm. Second, the examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that each lumbar spine disorder is caused or aggravated by the service-connected cervical degenerative disc and joint disease. Third, the examiner must also opine whether it is at least as likely as not (50 percent or greater probability) that any lumbar spine arthritis began during active service or manifested within one year after discharge from service. The examiner must address the following: (1) the Veteran’s lay statements regarding the onset of his back pain; (2) the September 1977 STRs indicating the Veteran fell down several flights of stairs and was treated for loss of consciousness, two large lacerations to the head, and a hematoma to the left forearm; and (3) the Veteran’s post-service treatment for his lumbar spine disorder, including his March 2009 x-rays and February 2010 MRI as well as the VA physician’s statements therein. 2. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§3.158, 3.655 (2018). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ashley Ki 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.