Citation Nr: 21013632 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 09-05 137 DATE: March 10, 2021 REMANDED Entitlement to service connection for a low back disorder, to include as secondary to service-connected cervical disc disease, is remanded. REASONS FOR REMAND The Veteran had a period of active duty from October 1953 to March 1955 and periods of active duty for training (ACDUTRA) from March 1972 to October 1972 and from June 1976 to January 1977. He also had additional periods of active duty from October 1994 to March 1995 and from March 1995 to August 1995. The Veteran had several periods of ACDUTRA and inactive duty for training (INACDUTRA) in the United States Army Reserve and the Army National Guard of several states from January 1972 to January 1997. The Veteran had verified periods of INACDUTRA, such as weekend drills, in the time periods from September to December 1983, April to July 1991, and January to April 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2008 rating decision that denied reopening the claim of entitlement to service connection for a low back injury. In April 2011, the Board reopened the claim and remanded this matter for additional development. The Veteran died in May 2011. The appellant is the Veteran’s surviving spouse and has been found to be the proper substituted claimant for the deceased Veteran for the purpose of pursuing the claim of entitlement to service connection for a low back disorder. Thereafter, the Board remanded this matter for additional development in June 2012, January 2016, and March 2020. Entitlement to service connection for a low back disorder, to include as secondary to service-connected cervical disc disease, is remanded. Unfortunately, there still has not been substantial compliance with the Board’s previous remand directives regarding this issue. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). As an initial matter, the electronic claims file still does not contain the service treatment records from the Veteran’s first period of active service from October 1953 to March 1955 and still does not include a clear explanation outlining the efforts to obtain the records or any indication that the appellant and her representative were informed of the outcome of these efforts. The Board further finds that the opinion rendered by the January 2021 VA examiner as to whether the Veteran’s low back disorder onset during, was related to or aggravated by qualifying military service was inadequate for adjudication purposes, as the examiner failed to provide a complete rationale as well as a full discussion of the evidence of record, as was requested in the Board’s March 2020 remand instructions for this complex claim. The January 2021 VA examiner opined that the claimed low back condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In the cited rationale, the examiner indicated that the November 1994 motor vehicle accident showed an X-ray that revealed arthritis in the lower back, finding that arthritis would not have developed during service and would have taken years to develop. The examiner then simply concluded that there was nothing in the records that showed aggravation of the lower back other than the normal progression. The matter is REMANDED for the following actions: 1. Obtain the Veteran’s service treatment records from his first period of active service from October 1953 to March 1955. The AOJ should also search for the requested records under the Veteran’s service number ([REDACTED]). See VA Form 21-3101 dated on November 11, 2011. If the requested records are unavailable, the AOJ must prepare a memorandum with a formal finding of unavailability outlining the efforts and responses; and inform the appellant and her representative of the outcome of this effort to include giving her another opportunity to provide relevant service treatment records. 2. Thereafter, obtain an addendum medical opinion from an appropriate examiner that preferably has a specialty in orthopedics (other than the VA examiners that provided the September 2015, March 2016, and January 2021 VA medical opinions) regarding the etiology of the Veteran’s claimed low back disorders. The electronic claims file, including a copy of this remand, must be made available to the examiner. The examiner should note in the opinion that the electronic claims file has been reviewed. In particular, the examiner must provide an opinion as to whether any of the Veteran’s diagnosed low back disorders, including DDD, was at least as likely as not (50 percent or greater probability) due to a disease or injury incurred or aggravated during a period of active duty or ACDUTRA or resulted from an injury incurred or aggravated during a period of INACDUTRA. The examiner should discuss the low back findings during the Veteran’s periods of ACDUTRA, including treatment in September 1972 for a contusion to lumbar spine from a slip and fall injury, complaints of back pain in November 1976, and diagnosed myalgia for lumbar tenderness in January 1977. With verified periods of INACDUTRA on October 15, 1983, and June 1-2, 1991, the examiner should also discuss the documented findings of the Veteran reporting to sick call for his back in August 1983, on June 28, 1991, before and after the corresponding periods of INACDUTRA. As evidence of record contains findings that the Veteran’s DDD began in 1988 prior to his periods of active duty from October 1994 to August 1995, the examiner must also opine as to whether there is clear and unmistakable evidence that the low back disorder was not aggravated (worsened beyond its natural progression) by his periods of active duty from October 1994 to March 1995 and March 1995 to August 1995. The examiner should address the Veteran’s report of low back pain after a November 1994 motor vehicle accident with a November 1994 lumbar spine X-ray report revealing minimal osteophytosis off the anterior vertebral bodies with no narrowing or loss of vertebral height, spondylosis, or spondylolisthesis as well as his treatment for lumbar myogelosis in May 1995. In providing the opinion, the examiner should discuss and reconcile evidence contained in the service treatment records, service personnel records, post-service VA and private treatment records, and the March 2009, January 2012, September 2015, March 2016, and January 2021 VA examination reports/medical opinions. References to specific evidence in the file that supports the provided opinions would be helpful as opposed to generalized conclusions. Rationale for all requested opinions shall be provided. 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(s). 3. After completing the above actions and any other necessary development, the claim on appeal must be readjudicated, taking into consideration all relevant evidence associated with the record since the January 2021 SSOC. If the benefit on appeal remains denied, an SSOC must be provided to the appellant and her representative. After the appellant has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. D. Deane, 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.