Citation Nr: 21013146 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 13-00 597 DATE: March 8, 2021 REMANDED The issue of service connection for a lumbar strain is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1982 to April 1984. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2010 rating decision. In October 2016, the Veteran testified at a Board hearing; a transcript of the hearing is associated with the claims file. In April 2017 and February 2020, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. The issue of service connection for a lumbar strain is remanded. The Veteran contends she has a current low back disability, claimed as a “back injury,” that began during military service. Unfortunately, there has not been substantial compliance with the Board’s previous remand directive with respect to obtaining a medical opinion supported by an adequate rationale as to whether the dextroscoliosis described in the lumbar spine x-ray study during the May 2017 VA examination was caused by either documented back injury during military service. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The AOJ should request a supplemental medical opinion. To assist the reviewing examiner, a summary of pertinent medical and lay evidence is included herein. The Veteran’s service treatment records document her spine was normal on enlistment examination in November 1981. In November 1982, she presented to the clinic with complaints of back pain in the “lumbar sacrum region” since she hurt her back moving bunks during a GI party nine days earlier. The assessment was paraspinal muscle spasms versus muscle strain. The plan included a 14-day physical profile with no physical training. She was instructed to return to the clinic if her symptoms worsened or persisted more than seven days. A December 1983 service treatment record reflects the Veteran’s complaint of back pain for the past four days since tripping over a tent rope and falling on her back. Physical examination showed parathoracic muscle spasm at the right, mid-thoracic area. The assessment was back strain. The plan included a seven-day physical profile. The examiner instructed the Veteran to return to the clinic if there was no improvement. In January 1984, the Veteran learned she was pregnant. In a March 1984 separation report of medical history, she denied having recurrent back pain. On examination the same day, her spine was reported as normal on clinical evaluation. The examiner noted she was three and a half months pregnant and recorded her weight as 131 pounds, representing a 13-pound gain since enlistment. Among post-service private treatment records from a women’s health center, records from February 2002, March 2003, March 2004, and April 2005, documented that her musculoskeletal system was normal on examination. Subsequent records from April 2007, April 2008, and July 2009, indicated that her musculoskeletal system was within normal limits during a review of systems. Private physical therapy records dated from June 2005 to August 2005 reflect the Veteran’s participated in therapy for bilateral foot pain. Her insurance card identified her employer as a construction and remodeling company. During a July 2005 appointment, she indicated that her job had her on her feet more than usual, but her feet were feeling better because she was doing her home stretches. The Veteran had a VA examination in March 2010. She reported having intermittent low back pain during service that continued to be a problem after service. She described current symptoms as intermitted low back pain in the upper and mid-lower back with stiffness and shooting pains into the buttocks area. Following a review of the claims file and examination, the diagnosis was lumbar strain. The examiner opined that the lumbar strain was less likely than not related to her complaints of back pain during service. The examiner explained that the vast majority of cases of acute low back pain resolve without any long-term sequelae, emphasized that service treatment records contained no indication of a chronic back disorder or serious injury to the lumbar spine, and observed there was no documentation of treatment of a lumbar strain since service. After the Veteran’s claim of service connection for a back disorder was denied, she established VA medical care on September 9, 2010. During her initial primary care visit on that date, she reported a past medical history of chronic back pain due to a traumatic injury during service. The assessment included back pain. At a follow-up appointment with the primary care physician one week later, she indicated she had previously seen a chiropractor with good results and wanted to continue therapy. The plan included fee-basis chiropractor visits for back pain. A consultation request from the same day, reflects that the VA physician referred the Veteran to a private chiropractor, Chris D Chance, D.C., for chiropractic follow-up care for chronic back pain secondary to trauma. In October 2010, the Veteran began fee-basis chiropractic treatment at Access Chiropractic Center. She complained of low back, neck, and upper back pain being a long-term problem, stating it “has come on after military acc[ident] where I tripped over tent line.” She reported receiving previous chiropractic care from Dr. Chance. A “history” section of the records from her initial visit also records her report of a “long history of [low back pain] dating to 1983” and that her neck and “upper back” pain was “recent.” During the initial examination, she described neck, upper back, and low back pain, stating that her “entire spine hurts [at] one time or another” from a “military acc[ident] years ago” in 1983. The assessment was cervical, thoracic, and lumbar sprain. The chiropractor, Warren K. Carlyle, D.C., indicated that diagnostic studies were not indicated at the present time but x-ray studies would be available at a later date. In October 2016, the Veteran testified that her back pain began when she tripped over a tent rope and fell on her back. She stated she did not report any back pain at separation examination or seek treatment shortly after service because she was “pregnant at the time so back pain was back pain. I thought it associated more with the pregnancy.” She also testified that approximately 15 years earlier she entered the construction management field, working as a project manager for a construction company. She stated that her job involved going out to job sites, climbing ladders, and getting on roofs. She added, “That’s when I started noticing I was having back pain.” She indicated she still did not seek treatment at that time because she “just thought it was hard doing that type of work, and then when looking back, I realized it was from when the back injury started in the military.” She testified she was first diagnosed with a back disorder during the October 2010 VA examination and first received back treatment in 2010 by a private chiropractor, Dr. Chance, and by a fee-basis chiropractor at Access Chiropractic Center. In October 2016, VA received a “corrected” letter dated September 8, 2010, from C. Chance, D.C., which was addressed to the Veteran’s VA primary care physician, whom she had first seen on September 9, 2010, and who placed a referral for fee-basis chiropractic care with Dr. Chance on September 16, 2010. Dr. Chance reported he first treated the Veteran in August 2010 when she presented for complaints of back pain between the lower back and mid-back region, which she believed was “related to accident in 1983 when she fell over tent spikes.” He indicated that x-rays taken during the initial visit in August 2010 “showed anterior instability of both L4 and L5 with small anterior spurs which is indicative of some type of hyperextension injury.” In May 2017, the Veteran was afforded a VA examination to evaluate the nature and etiology of her claimed back disability. She related she was seen in 1983 for back pain after falling over a tent rope during a training exercise and she received pain pills. She stated she was seen two or three times for back pain during military service. She indicated that in 1985 or 1986 before after her daughter’s birth but before moving from Alabama to Florida in 1986, she had an episode of back pain and her general physician told her she had a back strain and gave her pain medication. Then, in approximately 2007, she saw a private chiropractor, had x-rays that showed “nothing abnormal,” and had therapy for a few months. She added that the wear and tear to her back had increased over the years, so four or five years ago VA sent her to a chiropractor for a few months of therapy that temporarily helped her back pain. She described her work history involving “mainly sedentary jobs” after separation from service. The examining physician commented that the Veteran’s subjective complaints during the examination appeared to be out of proportion to objective findings. For example, the Veteran displayed poor effort, initially declining to forward bend to measure range of motion; however, she later did cooperate and was able to bend to at least 90 degrees with objective evidence of pain as she tied her shoes at the end of the examination. Following a review of the claims file and examination, the diagnosis was lumbosacral strain. The examiner indicated the lumbar strain was a transient condition, which had resolved with no objective evidence of chronic residuals. Findings from a lumbar spine x-ray study included a 13 degree dextroscoliosis with the apex of the curve at the L2-L3 level, a prominent lumbar lordosis; well-maintained vertebral body heights and disc spaces, and no significant facet disease; the impression was mild dextroscoliosis. The examiner detailed that service treatment records showed the Veteran’s two back injuries in service were appropriately treated and resolved with no evidence of chronic residuals. The examiner emphasized that the March 1984 separation examination showed no chronic residuals because the Veteran reported she did not have ongoing back issues and examination of her back was normal. Regarding the mild dextroscoliosis, the examiner opined it was “an incidental finding, not of unclear clinical significance in this case since her back exam is [within normal limits]. The weight of peer-reviewed medical literature is against a relationship” between the current mild dextroscoliosis seen on the May 2017 x-ray report and the two transient events during military service. In June 2017 correspondence, the Veteran indicated she had checked out x-rays from Dr. Chance on December 28, 2010, and provided them to Access Chiropractic Center; however, the chiropractor she had seen retired in 2015 and Access Chiropractic Center did not have any x-rays on file for the Veteran. In compliance with the Board Remand directives, in February 2020 correspondence, the AOJ asked the Veteran to submit records from Dr. Chance and enclosed authorization and release forms to allow VA to assist her in obtaining those records. She did not submit the requested treatment records or return a completed form to allow VA to obtain those records on her behalf. In October 2020, the Veteran presented for a VA fee-basis examination. She reported that she tripped over a tent rope and fell during military service and that her back pain had progressed since then. Following a review of the claims file, including the May 2017 lumbar spine x-ray report that noted mild dextroscoliosis, and an examination, the diagnosis was lumbosacral strain and mild dextroscoliosis. The examining physician opined it was less likely than not that the mild dextroscoliosis documented on x-ray examination in May 2017 had its onset in service or is otherwise medically related to the Veteran’s military service, including the documented back injuries in November 1982 and December 1983. The examiner explained that dextroscoliosis was an incidental finding on the May 2017 x-ray examination and that had likely been a lifelong issue present since birth or shortly thereafter. The AOJ should give the Veteran another opportunity to submit treatment records from the private chiropractor, C. Chance, D.C., and should obtain a supplemental medical opinion regarding the etiology of the mild dextroscoliosis documented by the May 2017 compensation and pension lumbar spine x-ray study. The matter is REMANDED for the following action: 1. Ask the Veteran to submit all treatment records from her private chiropractor, C. Chance, D.C., since establishing care in August 2010, or to complete and return an authorization and consent to release information to allow VA to assist her in obtaining those records. 2. Obtain any ongoing treatment records from the Gainesville VA Medical Center dating since October 2020. 3. Provide the Veteran’s electronic claims file and a complete copy of this Remand to an appropriate clinician to obtain a supplemental medical opinion. The reviewing examiner is advised that findings from the lumbar spine x-ray study performed during the May 2017 VA examination included a 13 degree dextroscoliosis with the apex of the curve at the L2-L3 level, a prominent lumbar lordosis; well-maintained vertebral body heights and disc spaces, and no significant facet disease; the impression was mild dextroscoliosis. Following a review of the claims file, the designated clinician should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s mild dextroscoliosis had its onset in service or is otherwise etiologically related to service, including the November 1982 back injury assessed as a paraspinal muscle spasm versus muscle strain involving the lumbosacral region or the December 1983 injury assessed as a back strain and manifested by parathoracic muscle spasm at the right, mid-thoracic area. A detailed medical rationale must be provided for all opinions expressed. For example, in providing the requested opinion, the reviewing examiner should consider the anatomical locations of the Veteran’s dextroscoliosis and in-service back strains. The examiner should also explain whether the Veteran’s dextroscoliosis represents a congenital defect (as alluded to by prior examiners) or whether the evidence supports a conclusion that the Veteran sustained a traumatic dextroscoliosis during military service. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Kirscher Strauss 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.