Citation Nr: 21013997 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-03 557 DATE: March 11, 2021 REMANDED Entitlement to service connection for a lumbosacral spine disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from July 1970 to February 1971, and from April 1974 to March 1976. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. The Board notes that the VLJ who conducted this hearing is no longer employed at the Board. VLJs who conduct hearings must participate in making the final determination of the claim on appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. In an October 2020 letter, the Board notified the Veteran that the VLJ was no longer employed by the Board, and informed him of the right to another hearing. This letter also informed that if the Veteran did not respond within 30 days, the Board would assume that another hearing was not desired and would proceed to adjudicate the claim on appeal. The Board notes that, as of this date, the Veteran has not responded to said letter; therefore, the Board assumes that the Veteran does not wish to appear at another hearing. This matter was previously before the Board in April 2019, where it was remanded for additional development. The Board notes that there was not substantial compliance with its April 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). In the April 2019 remand, the Board requested that an addendum opinion be obtained that address whether the Veteran was sound (without a preexisting condition) at the time of his entrance on active duty. The evidence of record raised the question as to whether the Veteran had a preexisting back condition prior to any active duty service period and if so, whether the preexisting condition was aggravated in service. Therefore, the Board specifically directed the VA examiner to provide opinions using the standard for determination of whether the presumption of soundness is rebutted – that standard being by clear and unmistakable (obvious or manifest) evidence. The Board notes that that the law provides that every veteran is taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. The Board notes that the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) clarified in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) that the presumption of soundness provided by 38 U.S.C. § 1111 is only rebutted if there is both (1) clear and unmistakable evidence that the claimed condition existed prior to service and (2) clear and unmistakable evidence that any pre-existing conditions were not aggravated by service. In December 2019, an addendum VA medical opinion was completed in response to the Board’s April 2019 remand directives. However, upon review, the Board finds this opinion to be inadequate for adjudicative purposes, as the examiner failed to apply such clear and unmistakable standard to the finding that the Veteran had a preexisting back condition, and that such condition was not aggravated by the Veteran’s active service. Instead, the examiner applied the “less likely than not (less than 50% probability)” standard; which the Board notes does not adequately address or rebut the presumption of soundness. Additionally, the Board notes that the VA examiner’s rationale is also inadequate. Specifically, the examiner’s overall conclusion is rather conflicting, in and of itself, as the examiner provided extensive discussion on the contradicting evidence of record that suggests that there is not clear and unmistakable evidence of a preexisting condition, despite the examiner actually concluding that there was a preexisting back condition). Therefore, based on the above, the Board finds that the VA examiner’s opinion and rationale are both inadequate. As such, another addendum VA medical opinion should be obtained, prior to adjudication of the claim and in compliance with Stegall. Accordingly, a remand is necessary to address the matters discussed above. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his lumbosacral spine disorder and obtain any outstanding records and associate them with the Veteran’s claims file. 2. After associating all newly acquired records with the claims file, send the claims file back to the April 2019 VA examiner to provide the Veteran another addendum VA medical opinion to determine the nature and etiology of the Veteran’s lumbosacral spine disorder. If the April 2019 VA examiner is not available, obtain the necessary addendum opinion from another appropriate clinician. The entire claims file, including a copy of this remand, must be made available to the examiner, and note review of the record in the examination report. Any indicated tests or studies should be performed, and all material relevant evidence should be discussed. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. Following complete review of the record, the examiner must address the following: (a) Opine whether there is clear and unmistakable (obvious or manifest) evidence that the Veteran’s back condition existed prior to his entrance into active duty service in July 1970 and/or in April 1974. Please note: the examiner must opine as to both active duty periods. (b) If so, opine whether there is clear and unmistakable (obvious or manifest) evidence that the preexisting back condition did NOT undergo an increase in severity beyond the natural scope of the disability during any period of the Veteran’s active duty service. (c) Any opinion should include a detailed rationale. The examiner should consider the entire claims file, and discuss the Veteran’s lay statements regarding the nature, onset, and chronicity of symptoms. The examiner is advised that the Veteran is competent to report symptoms, and that his reports must be considered in formulating the requested opinion. (d) If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rational for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hodges, Associate 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.