Citation Nr: 21012124 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-39 523 DATE: March 3, 2021 REMANDED The issue of entitlement to service connection for low back disability, to include degenerative disc disease of lumbar and thoracic spine as well as low back strain, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1999 to August 2004. In January 2020 and September 2020, the Board remanded this matter for further evidentiary development. Unfortunately, after a thorough review of the Veteran's claims file, the Board finds that another remand is necessary. The Board sincerely regrets the delay caused by this third remand but has determined that additional evidentiary development remains necessary prior to final adjudication of the Veteran’s claim for service connection for a low back disability. The Veteran is seeks service connection for low back disability. He contends that he developed a low back disability as a result of the physical activities he performed during his active service (specifically hard landings from helicopter jumps). Military personnel records show that his military occupational specialty (MOS) was that of a helicopter mechanic. The report of a July 2014 Disability Benefits Questionnaire (DBQ) notes that the Veteran had a diagnosis of degenerative disc disease of the lumbar spine (moderate) and the thoracic spine (mild). X-rays had shown moderated L5-S1 degenerative space narrowing and mild endplate degenerative changes. The clinician provided a negative nexus opinion and, in so doing, stated that there were no clinical reports, or complaints, of a back injury during the Veteran’s service. Significantly, however, the clinician did not consider or address the Veteran’s statements regarding continuous symptoms since service. As a result, the Board remanded the claim to obtain another medical opinion. At a January 2020 VA examination, the examiner determined that the Veteran did not have a current diagnosis of a low back disability. Based on this finding, the Board remanded the Veteran’s claim again (in September 2020) to obtain an opinion clarifying if the Veteran did indeed have a current low back disability. In October 2020, a VA clinician reviewed the record and opined that it was less likely than not that the Veteran’s back condition was incurred in, or caused by, his service. The clinician indicated that there was no evidence of a back injury or complaints while in service. The clinician noted that the Veteran’s X-rays were negative in February 2020, which was contradictory to the DBQ in 2014. The clinician opined that the general diagnosis of low back strain is more appropriate. As the current record stands, there is still confusion regarding the actual diagnosis of the Veteran’s low back condition. X rays taken of the Veteran’s spine in 2014 confirm a diagnosis of degenerative disc disease. Also, an April 2014 VA treatment record, based on a diagnostic testing viewing of the Veteran’s chest, notes mild degenerative changes of the Veteran’s spine. The October 2020 opinion does little to reconcile the conflicting findings. Also, the recent opinion does not address the Veteran’s assertions of continuous low back pain symptoms since service. Further, the examiner does not provide a sufficient explanation as to why the Veteran’s hard landings (from helicopter jumps) in service did not any way contribute to his current back problems. Medical questions that are critical to the determination in this matter still remain unresolved. In order for the Board to be able to make a clear and informed determination, the Board will remand the claim once again, hopefully for the ultimate time, to obtain another VA examination, which includes the necessary diagnostic testing, and opinion to help resolve the remaining medical questions. Accordingly, this matter is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any previously unobtained records of low back treatment. The Agency of Original Jurisdiction (AOJ) should secure any necessary authorizations. (Regardless of the Veteran’s response, all updated VA treatment records should be procured.) Copies of all available records should be associated with the claims folder. If the records cannot be obtained, inform the Veteran of the records that could not be obtained, including what efforts were made to obtain them. The Veteran should also be notified that he may submit any such records. All efforts should be recorded in the claims folder. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of his low back disability. Any and all indicated studies and tests should be accomplished. The claims file should be made available to the examiner for review in conjunction with this examination. After review of the record and examination of the Veteran (including any testing or studies deemed necessary), the VA examiner should offer his or her opinion with supporting rationale as to the following inquiries, as clearly and precisely as possible: (a) Please provide the diagnosis(es) of a low back disability shown on current examination or at any time during the pendency of this appeal. If there are different diagnoses than those currently of record, the examiner should attempt to reconcile the diagnoses with the evidence of record. This includes reviewing any diagnostic testing and studies performed. (b) For any low back disability diagnosed on current examination or at any time during the appeal period, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that such diagnosed disability(ies) onset in, or is(are) otherwise related to, his service. In expressing this opinion, the examiner must consider and address the Veteran’s reports of continuous low back pain since service as well as the Veteran’s reports of sustaining hard landings from helicopter jumps during active service. The examiner must not solely rely on the absence of in service documentation of a low back injury. The examiner must consider and address whether the Veteran's physical duties, specifically hard landings from helicopter jumps, in any way, contributed to the development of his current low back condition. The examiner is hereby advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran’s reports are discounted, the examiner should provide a reason for doing so. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Middleton, 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.