Citation Nr: 21013930 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-25 590 DATE: March 10, 2021 REMANDED Entitlement to service connection for a low back disability, to include lumbar spondylosis, but other than spina bifida and lumbar degenerative disc disease (DDD), is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1992 to September 1997. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a July 2012 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned at a hearing in January 2015. In September 2016, February 2018, and August 2019 the Board remanded the claim for additional development. 1. Entitlement to service connection for a low back disability, to include lumbar spondylosis, but other than spina bifida and lumbar degenerative disc disease (DDD), is remanded. VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d1331 (Fed. Cir. 2013)). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). A remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In a September 2016 decision, the Board allowed service connection for lumbar spine degenerative disc disease (DDD) and denied service connection for spina bifida occulta. The Board noted a May 2012 VA examiner also diagnosed low back disabilities of lumbar degenerative joint disease (DJD) and lumbar spondylosis. As the Veteran sustained intervening post service back injuries, the Board found a medical opinion was needed to determine whether any additional low back disability was related to the Veteran’s active service. The claim was remanded for an additional etiology opinion. The Board also observed, the presumption of soundness had attached as to any back disabilities other than spina bifida. Following this remand, a November 2016 addendum medical opinion was obtained. The addendum explained that the Veteran’s low back condition was a degenerative condition of the posterior facet joints. This condition could be referred to as facet arthropathy, DJD or lumbar spondylosis because the terms were interchangeable. The examiner stated it was impossible to state whether these degenerative changes had their onset during active service, but he then opined the condition was less likely than not onset during service. The Board found these statements were inconsistent. Additionally, the Board observed the examiner had not addressed the lay evidence (testimony and written statements) that the Veteran experienced back pain while on active duty. The Board remanded the claim for an additional examination and etiology opinion. The examiner was directed to address the lay evidence, A second VA back examination was a provided in November 2018. The examiner is identified as M. S., a VA nurse practitioner. She diagnosed lumbar DDD, status post lumbar fusion, and facet arthropathy. She opined the additional back disabilities were less likely than not related to the Veteran’s active service because he had experienced intervening post service back injuries while working as a civilian firefighter on a military installation. In August 2019, the Board found the examiner’s opinions were inadequate because she had dismissed the lay reports of in-service back problems without providing an adequate rationale for doing so. In August 2019, the Board remanded the claim for an additional examination and etiology opinions. The Board required that the examination and opinion be provided by a clinician who had not previously evaluated the claim. In July 2020, Dr. N. G., a VA orthopedist who had not previously examined the Veteran, provided an etiology opinion. His signature appears at the bottom of the opinion. Preceding the opinion, there is a note reflecting that Dr. N. G. did not have access to VA’s CAPRI (Comprehensive and Pension Record Interchange.) His opinion was entered into this system by M. S., the VA nurse practitioner who examined the Veteran in November 2018. Dr. N. G. did not examine the Veteran. Based on a review of the claim, Dr. N. G. described the Veteran’s post service back surgery as being “usually” related to “worsening DDD related pain and most likely due to worsening facet arthropathies.” He observed there was no medical evidence of in-service radiating back pain and he noted that it would be difficult for anyone experiencing radiating pain to tolerate the tasks and drills required of a firefighter. After separating from active service, the Veteran worked as a civilian firefighter and he sustained workplace injuries in 2003 and in 2008. He underwent back surgery in 2009. Dr. N. G. stated, “[d]espite the lack of clear medical objective evidence . . . it is reasonable to assume that back conditions DDD more likely than not were aggravated by those incidents. Specifically, radiculopathy and worsening DDD related lower back pain might be aggravated by those injuries.” He summarized his findings by saying, the Veteran’s DDD was onset during active service; thereafter, he had acute flare ups of back pain due to chronic DDD and radiculopathy due to new injuries. Thus, there were intervening post service work related lumbar spine injuries. However, based on the credible lay evidence, the repetitive stress during active duty and the underlying spina bifida increased his risk for additional injuries. Then the injuries more likely than not further increased the progression of the underlying condition and aggravated his overall condition. In August 2020, Dr. N. G., provided an addendum. His signature is included at the end of the opinion and it was entered into the CAPRI system by M. S. The addendum states, “it is impossible and not safe to formulate an opinion that the [Veteran’s] claimed condition is at least as likely—50 percent or greater probability—caused by his active service” and “the [Veteran’s] condition is at least as likely not related to his low back pain he endured during the service.” The addendum concludes, [i]t is very likely—50 percent or greater probability—that other diagnoses including but not limited to radiculopathy, facet arthropathies, spinal stenosis that could be simply summarized under the definition of spondylosis are indeed incurred during his service as a civilian firefighter.” On September 23, 2020, M. S. entered an additional addendum opinion. The opinion is not submitted under Dr. N. G.’s signature, but it is attributed to Dr. N. G. This opinion states, “it [is] AT LEAST AS LIKELY AS NOT that other diagnoses including but not limited to radiculopathy, facet arthropathies, spinal stenosis that could be simply summarized under the definition of spondylosis are indeed incurred during his post active duty work as a civilian firefighter.” The opinion also says the initial degenerative changes diagnosed were due to post service injuries and they were not the continuation of any symptomatology in service. On September 24, 2020, M. S. entered a final addendum stating, “there is no evidence to support the [Veteran’s} spondylosis/arthritis or any other current back condition is a progression of or aggravated by the [Veteran’s service-connected] DDD.” This opinion was provided by M. S. without contribution from any other medical professional. Here, the discussion presented in the July 2020 opinion is inconsistent with the conclusions offered in August 2020 and September 2020. As a group, the opinion and addendum opinions are insufficient to evaluate the claim. See Stefl, supra. Moreover, there has not been substantial compliance with the Board’s remand directives. The Board required that an additional back conditions examination be provided to fully diagnose the Veteran’s back problems. This examination was not provided. In addition, the Board specified that the examination and the etiology opinions be provided by a clinician who had not previously examined the Veteran. The addendum submitted on September 24, 2020, was provided by M. S. who had previously evaluated the claim. An additional VA examination and new etiology opinions must be obtained. See Stegall, supra. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician, who has not previously evaluated the Veteran’s claims, to determine the nature and etiology of any low back disorder present other than lumbar DDD and spina bifida occulta. The examiner must opine whether any condition diagnosed is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s duties as an active duty fire fighter. The examiner must consider and discuss the Veteran’s statements of March 2019 and December 2020 and his January 2015 testimony recounting his experience of back pain during service, his use of over the counter medications, and his reluctance to seek medical treatment during his active service. The examiner should also consider and discuss the January 2015 statement from the Veteran’s wife, the February 2015 statement from E. C., the March 2019 statement from K. F., and any additional statements of record. The examiner is advised that as laypeople, the Veteran, his wife, and his friends are competent to report their experience of symptoms, use of medications, and behavior they are capable of observing. The examiner may not dismiss any of these lay statements without expressly providing a reason for doing so. The fact that the Veteran’s reported symptoms are not recorded in contemporaneous medical records is not, by itself, sufficient reason to reject the statements. The examiner is further advised, for the purposes of this opinion, it is presumed the Veteran did not have any pre-existing spine disability (other than the noted spina bifida occulta) at the time of entry into service, in spite of his reported history of previous back issues. Further, the examiner is asked to discuss the evidence of record which shows the Veteran continued to work as a fire fighter after separation from service and he sustained intervening post-service work-related lumbar spine injuries. The examiner should note that the fact that an intervening injury occurred, alone, should not necessarily be taken as negative evidence of a nexus to service per se. The examiner must consider and discuss whether such intervening injuries may indicate a progression or aggravation of existing disease processes. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. The examiner should also opine whether there is a diagnosis of arthritis in the Veteran’s lumbar spine and if so, whether the arthritic condition at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeanne Celtnieks 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.