Citation Nr: 21013931 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 06-18 858 DATE: March 10, 2021 REMANDED Entitlement to service connection for a low back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1967 to July 1970. His awards and decorations include the Combat Action Ribbon. Unfortunately, the Veteran died in May 2019. The appellant is his sister, and she has been recognized as a valid substitute claimant. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board has remanded this case for further development multiple times and VA has obtained several VA medical opinions. In a December 2011 VA medical opinion, the examiner opined that it was less likely as not that the Veteran’s lumbar spine degenerative disc disease was caused by or a result of his previous military service. Rather, he opined that the Veteran’s disorder was likely related to his activities of daily living and occupations following service. In so finding, the examiner stated that there was no evidence of lumbar spine impairment, degenerative disc disease, or treatment during the Veteran’s active duty. In a February 2013 remand, the Board noted that the December 2011 VA examiner relied on the lack of in-service treatment for a low back disorder and did not consider the Veteran’s combat status. As such, the Board remanded the case to obtain an additional VA medical opinion. In so doing, the Board directed the examiner to reference the Veteran’s competent statements regarding the circumstances of his active service, to specifically include his combat service in the Republic of Vietnam. In an April 2013 VA medical opinion, the examiner opined that the Veteran’s low back disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In so finding, the examiner stated that no additional lumbar spine disability could be identified on x-ray and/or physical examination other than degenerative disc disease. Therefore, he concluded that there was inadequate documentation of an ongoing spinal disability to create a nexus or a sense of chronicity since service. In a January 2017 remand, the Board noted that the April 2013 VA examiner failed to reference the Veteran’s competent statements. As such, the Board remanded the case to obtain an adequate etiology opinion. In an October 2018 VA medical opinion, the examiner opined that the Veteran’s low back disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In so finding, the examiner stated that a review of the Veteran’s claims file and service treatment records revealed no medical evidence to suggest that his lumbar degenerative disc disease was related to or had its onset during service. The examiner also stated that no complaints of back pain or any other joint pain were documented at the time of the Veteran’s separation from service. She acknowledged that a September 1998 post-service medical record documented that the Veteran was issued a profile for a low bunk bed due, in part, to chronic low back pain. However, the examiner stated that a February 1999 annual examinations from the Department of Corrections noted that the Veteran’s back was within normal limits. She also stated that there was no medical evidence to suggest that the Veteran’s complaints of chronic low back pain in September 1998 were related to his active duty service. In an August 2020 remand, the Board noted that the October 2018 appeared to rely on the same rationale that the Board previously found to be inadequate, namely, that the Veteran’s service treatment records lacked any notation or treatment for a low back injury. The Board also noted that the VA examiners had not specifically considered the Veteran’s contentions as to the onset and progression of his back pain. As such, the Board remanded the case to obtain an additional VA medical opinion. In so doing, the Board directed the examiner to accept as true that the Veteran carried heavy combat supplies on his back for extended periods of time during his service in the Republic of Vietnam. The Board also requested that the examiner specifically address whether any of the Veteran’s low back disorders developed as a result of the types of injuries described by the Veteran. In an August 2020 VA medical opinion, the examiner opined that the Veteran’s low back disorders were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In so finding, the examiner stated that none of the Veteran’s treatment records from his periods of incarceration from 1996 to 1999 and from 2003 to 2006 established that he had a chronic low back condition. In addition, the examiner stated that the x-ray changes documented in 2006 were consistent with the Veteran’s age and not consistent with a previous overuse injury. The examiner opined that it was very unlikely that the severe facet arthropathy at L4-L5 was caused by an incident between 1967 and 1970, as it was not present in 2006. She also stated that the Veteran’s severe facet arthropathy was more consistent with an injury that occurred after 2006 and his sacroiliitis was inflammatory in nature. In a November 2020 remand, the Board noted that the August 2020 VA examiner did not address the Veteran’s assertion that he was hit in the back during his service in the Republic of Vietnam. In addition, the examiner stated that none of the Veteran’s medical records from his periods of incarceration established that he had a chronic low back condition. However, she did not reconcile that finding with the post-service treatment records that documented complaints of painful joints and chronic back pain. As such, the Board once again remanded the case to obtain an additional VA medical opinion. In a November 2020 VA medical opinion, the examiner opined that the Veteran’s low back disorder was less likely than not incurred in or caused by the claimed in-service event or injury, to include carrying heavy combat supplies or his “claim” of being hit on the back. Unfortunately, the Board finds that the November 2020 medical opinion does not substantially comply with the Board’s prior remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this regard, the November 2020 VA examiner stated she considered the Veteran’s historical assertions regarding the onset and injury of his back during active duty. However, the examiner also stated that she agreed with the October 2018 examiner’s medical opinion and rationale “with specific note of no back condition on active duty.” She also stated that post-service medical evidence did not support the Veteran’s “claim” of significant back injury during active duty. As discussed in the August 2020 Board remand, the October 2018 VA medical opinion and supporting rationale was inadequate because the examiner relied on the fact that the Veteran’s service treatment records lacked any notation or treatment for a low back injury. The November 2020 VA examiner’s opinion appears to discount the Veteran’s lay statements regarding the occurrence of in-service events and appears to rely on the same rationale as prior VA medical opinions, which the Board previously found inadequate. The Veteran has contended that his low back disorder onset in or was caused by his military service. See August 2004 Notice of Disagreement. Specifically, the Veteran reported that he injured his back carrying full combat supply. Id. In addition, the Veteran stated that he was hit on the back during his service in the Republic of Vietnam. See October 2018 VA examination. The Veteran’s DD Form 214 shows that his awards and decorations include the Combat Action Ribbon. His service personnel records also reflect that he participated in combat operations during his service in the Republic of Vietnam. In the case of any veteran who has engaged in combat with the enemy during active service in a period of war, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C. § 1154(b). This presumption may be rebutted only by clear and convincing evidence to the contrary. Id. Based on the foregoing, and although the Board sincerely regrets the delay, a remand is necessary to obtain an additional opinion regarding the etiology of the Veteran’s low back disorders. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate examiner regarding the nature and etiology of the Veteran’s low back disorders. The examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s low back disorders manifested in or were otherwise causally or etiologically related to his military service, to include his reported back injuries. *In providing this opinion, the examiner should accept as true that the Veteran carried heavy combat supplies on his back or extended periods of time during his service in the Republic of Vietnam. The examiner must specifically address whether any of the Veteran’s low back disorders developed as a result of his in-service injuries. In this regard, the Veteran reported having low back pain that started after carrying a full combat supply pack for 18 months. See, e.g., August 2004 Notice of Disagreement. He also reported that he was hit in the back during his service in the Republic of Vietnam. See October 2018 VA examination report. The examiner should note that the Veteran engaged in combat with the enemy during his military service. Thus, lay evidence may be accepted as sufficient proof that an injury occurred in service. The examiner should not improperly discount the Veteran’s lay statements regarding in-service back pain and injuries to support his or her conclusions. All opinions must be supported by detailed rationale. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Wulff, 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.