Citation Nr: 21014844 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 15-03 364 DATE: March 15, 2021 REMANDED The claim for service connection for degenerative arthritis of the lumbar spine is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1976 until his honorable discharge in February 1979. This appeal is being treated expeditiously on the Board of Veterans’ Appeals’ (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d). This case comes before the Board on appeal from an April 2014 rating decision by the Detroit, Michigan, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which confirmed and continued a June 2013 rating decision that denied service connection for degenerative disc disease. In July 2018, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record on appeal. In a February 2019 decision, the Board denied the Veteran’s claim for service connection for degenerative arthritis of the lumbar spine. The Veteran subsequently appealed the Board’s decision to the United States Court of Appeals for Veterans Claims. Based on a Joint Motion for Partial Remand (JMPR) submitted by the parties, the court entered an order in September 2019 vacating the Board’s decision in part and remanding the matter to the Board for readjudication. In the parties’ JMPR, they stipulated the Board erred when relying on inadequate May 2013 and March 2014 VA medical opinions. Following the Court’s remand order, in April 2020, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain a new VA examination for the Veteran’s degenerative arthritis of the lumbar spine, which the RO accomplished. The case now returns to the Board. The Board finds that there has not been substantial compliance with the Board’s previous remand directives regarding the issue on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). Inadequate Medical Opinion When VA obtains a medical opinion from an appropriate VA health care professional on medical questions involved in the consideration of an appeal, the opinion must be adequate. 38 U.S.C. § 5103A(d); 38 C.F.R. § 20.906(a). A medical opinion is adequate “where it is based upon consideration of the veteran’s prior medical history and examinations” and “describes the disability, if any, in sufficient detail so that the Board’s evaluation of the claimed disability will be a fully informed one.” Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (internal quotations and citation omitted). The report must contain clear conclusions and supporting data, as well as “a reasoned medical explanation” connecting the data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Consistent with the Board’s April 2020 remand order, the RO obtained a medical opinion in August 2020 from a VA-contracted examiner. The examiner opined that the Veteran’s degenerative arthritis of the lumbar spine was less likely than not incurred in or caused by his in-service parachute event/injury in 1977. For his rationale, the examiner confirmed the Veteran’s service dates, noted the Veteran denied back pain in his 1976 enlistment examination, noted a 1998 X-ray showed lumbar degenerative arthritis, and noted a “statement” that the Veteran reported back pain due to moving furniture during his post-military employment. The examiner then concluded, “Though the claimant does have a lumbar spine condition there was no complaint of back pain when he was involved in the parachute fall in 1977 and therefore I cannot say that the current back issue was caused by the parachute fall.” The Board finds the opinion is inadequate for three reasons: First, the opinion is equivocal due to the use of the incorrect standard and due to incorrect logic. The examiner opined the Veteran’s degenerative arthritis of the lumbar spine was less likely than not caused by his in-service parachute event/injury. This is a conclusion that used the correct standard. Yet, the examiner then concluded, “I cannot say that the current back issue was caused by the parachute fall.” (Emphasis added). This conclusion suggests the examiner employed the incorrect standard, one that requires certainty. The standard is not whether a current disability was definitively “caused” by an in-service event, injury, or illness; rather, the standard is whether it is at least as likely as not that an in-service event, injury, or illness “caused” the current disability. An inability to determine the cause of a disability does not necessarily suggest that the disability is less likely than not due to a claimed in-service event, injury, illness. Second, the examiner, while citing various facts did not offer any rationale linking the facts he cited to his opinion. Nieves-Rodriguez, 22 Vet. App. at 304 (“It is the fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion.”). Third, it appears the examiner erroneously relied upon findings made by the VA Regional Office when describing the history of the disability rather than conduct its own independent review of the evidence, as directed. The medical history essentially mirrors the history in the underlying Regional Office decision. Finally, while the examiner noted the Veteran’s 1976 entrance examination, it did not discuss his separation examination in June 1979. While the Board finds that it cannot rely upon the medical opinion provided, the physical examination of the Veteran appears thorough and complete. The examiner conducted all appropriate testing, documented the results, and recorded the Veteran’s lay statements to appropriate questions. Therefore, a new physical examination is not warranted at this time unless determined to be necessary by the new examiner who will be offering a new opinion as to the issue on appeal. Accordingly, the matter is REMANDED for the following actions: 1. Obtain any of the Veteran’s outstanding VA medical records and associate them with the claims file. 2. After any additional records are associated with the claims file, obtain an addendum opinion, from an examiner other than the one who authored the August 2020 examination, to provide an opinion as to the onset and etiology of the Veteran’s degenerative arthritis of the lumbar spine. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides a physical examination of the Veteran is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s degenerative arthritis of the lumbar spine had its onset in or is otherwise etiologically related to an in-service event, injury, or disease, to include the Veteran’s account of a fall during parachute training during his military service in 1977 in which he struck the ground? (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s diagnosed “right flank” injury that occurred in service in November 1977, as due to his parachute event, caused or contributed to his present degenerative arthritis of the lumbar spine? In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) The Veteran’s testimony during his July 2018 Board hearing that during his active service in 1977 he fell 75 to 100 feet during a parachute training exercise and hit the ground because his parachute did not fully open. And his testimony that he sought treatment for his back problems, to include arthritis and bulging discs, in the 1970s and 1980s, but that such medical records are unavailable. (b.) November 18, 1977, service treatment records that recorded a “jump injury (right side)”; that X-rays were taken; that the Veteran complained of “right flank pain” due to his jump; and a diagnosed “contusion” and tenderness of the right flank. (c.) Private medical records submitted by the Veteran documenting low back pain, to include 1998 X-rays documenting disc space narrowing and degenerative disc disease; a 2009 Radiology Exam Report from SPavilRadiology; and an “Employee Health Record Card” from the Veteran’s employer documenting complaints of back problems while working on May 15, 1986; May 20, 1986; May 29, 1986; January 31, 1997; February 3, 1997; February 24, 1997, in connection with his claim for workmen’s compensation. The examiner is reminded to consider the Veteran’s lay statements regarding the nature and onset of his degenerative arthritis of the lumbar spine, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran’s assertion of a degenerative arthritis of the lumbar spine in service or the assertion that an in-service event, injury, or illness led to his current disability. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. If the examiner relies on medical treatises, the examiner must identify the treatises. (Continued on the next page)   If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. In so doing, the medical professional 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 the particular question(s). M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.