Citation Nr: 21012636 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-38 795A DATE: March 4, 2021 REMANDED Entitlement to service connection for a thoracolumbar spine disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from January 1986 to October 1987, and had periods of active duty for training (ACDUTRA) from September 1979 to February 1980 and from February 1985 to June 1985. This case is before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision. While the Veteran requested a hearing before the Board, the record reflects that a hearing was scheduled for March 2019 and the Veteran did not appear or provide good cause for his absence. Accordingly, the hearing request is considered withdrawn. In January 2020 and May 2020, the case was remanded for further development. The January 2020 Board remand directed that a spine examination be conducted, and that the examiner provide an opinion addressing whether or not the Veteran’s thoracolumbar spine disability is related to his service, to include whether any spinal disability is at least as likely as not related to contaminants in the water during his service at Camp Lejeune. [The Board notes that an August 2012 VA treatment record indicates that the Veteran served at Camp Lejeune from January 2, 1980 to February 11, 1980 (more than 30 days); therefore, exposure to Camp Lejeune water is conceded.] Essentially, 38 C.F.R. §§ 3.307 and 3.309 establish a presumption of service connection for veterans who served at Camp Lejeune for no less than 30 days (consecutive or nonconsecutive) from August 1, 1953 to December 31, 1987, and have a diagnosis of any of the following eight diseases, even though there is no record of such disease during service: kidney cancer, liver cancer, non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. 38 C.F.R. §§ 3.307(a), 3.309(f). Such listed diseases shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(7)(ii). However, a thoracolumbar spine disability is not listed as a presumptive disease. Notwithstanding that the presumption provisions of 38 C.F.R. §§ 3.307(a), 3.309(f) do not apply in this case, under well-established caselaw, the Veteran may still establish service connection for his thoracolumbar spine disability on the basis that it is related to exposure to contaminated water in service with proof of direct causation. 38 U.S.C. § 1131; 38 C.F.R. § 3.303; Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). On March 2020 VA spine examination, the examiner opined that the Veteran’s back disability was less likely than not related to his service. She indicated that it was most likely a natural progression of aging. The examiner explained that the Veteran was seen for lower back pain in 1987, but that his service treatment records (STRs) were otherwise silent regarding ongoing treatment for a back disorder. She noted that postservice treatment records showed insufficient evidence of ongoing treatment for a back disorder until 2011 when a lumbosacral spine MRI showed vertebral compression fractures at L1 and L4. Whether any such back disability was at least as likely as not related to contaminants in the water during his service at Camp Lejeune, was not addressed. In the May 2020 remand, the Board found that the March 2020 VA opinion was inadequate because it was not clear from the VA examiner’s explanation why it was more likely than not that the Veteran’s spine disorder was due to advancing age, and requested an addendum opinion in the matter. In a June 2020 VA addendum opinion, the provider opined that the Veteran’s thoracolumbar spine disability was less likely than not related to his service. He explained, in part, that there was insufficient evidence to link the Veteran’s age-related degenerative changes to injuries or events sustained during his military service. Specifically, trauma to his lower back, sustained during service 30 years earlier, would likely have manifested in radiographic evidence of significant posttraumatic degenerative changes, and the Veteran’s most recent lumbar spine radiographs showed findings consistent with his age. The Board finds that the June 2020 addendum opinion is incomplete because, although not reiterated in the May 2020 Board remand, the Veteran’s contention (that was to be specifically considered on examination as directed in a January 2020 Board remand) that his thoracolumbar spine disability is related to his exposure to contaminated water at Camp Lejeune, was not addressed on March 2020 VA examination or in the March 2020 and June 2020 VA opinions; therefore, corrective action is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). The matter is REMANDED for the following: Return the Veteran’s record to the June 2020 consulting medical provider for review and an addendum opinion. [If that provider is unavailable, forward the record to another appropriate physician for review and the opinion sought. If further examination of the Veteran is deemed necessary for the opinion sought, such should be arranged.] On review of the record (to include this remand), the consulting provider should: Opine whether it is at least as likely as not (a 50% or greater probability) that the Veteran’s thoracolumbar spine disability is related to exposure to contaminated water at Camp Lejeune (as was requested in the Board’s February 2020 remand). The examiner must include rationale with all opinions, citing to supporting factual data and medical literature/treatise, as deemed appropriate. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.