Citation Nr: 21011197 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-21 207 DATE: March 1, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1966 to September 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran did not appear for his scheduled October 2018 Board hearing, provide good cause for his absence, or file a timely motion for a new hearing date. The Veteran’s hearing request is deemed as withdrawn. 38 C.F.R. § 20.603 (formerly 20.704). This matter was previously before the Board in March 2019, where it was remanded for additional evidentiary development. The Board noted there was conflicting evidence as to whether the Veteran had a pre-existing back disorder prior to active duty and whether there was aggravation of a pre-existing disorder. The Board determined that a prior October 2012 VA medical opinion was insufficient for adjudicative purposes and remanded the matter for a new medical opinion. The Veteran was afforded an additional VA examination in January 2020 to assess the nature of his claimed lumbar spine disability. Following a review of the record, the VA examiner opined that it was less likely than not that the Veteran’s lumbar condition pre-existed his military service. The VA examiner acknowledged statements in the service treatment records indicating that the Veteran’s back symptoms pre-dated his military service; however the VA examiner placed greater weight on the July 1966 entrance examination, which demonstrated a normal musculoskeletal system. The VA examiner determined there was not clear and unmistakable evidence that the Veteran experienced a clinically significant lumbar spine disability prior to his active duty service. As such, the Veteran is presumed to be sound at service entrance as to the lumbar spine, and the question of a pre-existing disability has been fully resolved. In the event that the VA examiner determined that the record lacked clear and unmistakable evidence of a pre-existing lumbar spine disability, the March 2019 Board remand asked the VA examiner to opine on whether the Veteran’s current lumbar spine disability was at least as likely as not related to the Veteran’s active duty service. The VA examiner was explicitly requested to address the in-service evidence referencing scoliosis and leg length discrepancy as the cause of the Veteran’s in-service back pain, as well as the lack of evidence currently showing scoliosis and leg length discrepancy within the appellate period. Additionally, the VA examiner was requested to address the Veteran’s lay reports of injuring his back during basic training, with continuous back pain from active duty to the present. The January 2020 VA examiner opined that the Veteran’s current lumbar spine disability was less likely than not related to his active duty service. The VA examiner explained that the complaints of back pain documented in the service treatment records were acute events without long-term sequelae, as evidenced by the normal musculoskeletal examination conducted at the September 1970 separation examination and “no records showing back pain from 1970 to 2011.” The Board finds the January 2020 VA examiner’s medical opinion failed to comply with the Board’s March 2019 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The VA examiner gave no commentary regarding the significance of the Veteran’s in-service scoliosis and leg length discrepancy, and the lack of such physical findings during the appellate period. The VA examiner also did not discuss the Veteran’s lay reports of injuring his lumbar spine during boot camp and his lay reports of continuous low back pain since service discharge. Additionally, the Veteran’s VA treatment records establish complaints of low back pain dating as far back as 2006—well before the time period referenced by the VA examiner. It is noted that a July 2006 lumbar spine radiograph was normal. Accordingly, the claim must be remanded for an addendum VA medical opinion that complies with the Board’s previous remand directives. Lastly, the RO is requested to obtain updated VA treatment records from July 2020 to the present, if such evidence exists. 38 C.F.R. § 3.159(c)(2) and (3). The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from July 2020 to the present. 2. Obtain an addendum VA medical opinion from an appropriate VA examiner regarding the etiology of the Veteran’s current lumbar spine disability. Following a complete review of the electronic claims file, including a copy of this REMAND, the VA examiner is requested to address the following inquiry: Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current lumbar spine disability is etiologically related to the Veteran’s active duty service? The VA examiner must address the in-service references to scoliosis and leg length discrepancy as the cause for the Veteran’s back pain during service and the lack of evidence showing either of these physical findings within the current appellate period, and how it weighs into the above requested etiology opinion. The VA examiner must address the Veteran’s competent report of injuring his lumbar spine during basic training with punji sticks and his statements indicating he has experienced continuous low back pain from active duty to the present. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The VA examiner must provide a complete rationale for any opinion expressed that is based on the examiner’s clinical experience and medical expertise; established medical principles; and the evidence of record, as appropriate. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Galante 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.