Citation Nr: 21015353 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-31 024 DATE: March 17, 2021 REMANDED Entitlement to service connection for a thoracolumbar spine disability is remanded. Entitlement to service connection for right lumbar radiculopathy as secondary to a thoracolumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1997 to March 2000. In July 2019, the Veteran testified before the undersigned Veterans Law Judge via videoconference hearing. A copy of the hearing transcript is of record and has been reviewed. In December 2019, the Board reopened the claim for service connection for thoracolumbar spine disability and remanded it along with the associated right lumbar radiculopathy for further development, to include obtaining an addendum medical opinion. Subsequent to the Board’s remand, the Veteran underwent a July 2020 VA back examination, at which time the examiner confirmed diagnoses of degenerative arthritis of the spine, spinal stenosis with bilateral radiculopathy, and thoracic scoliosis. In response to the Board’s questions, the examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. As a rationale, the examiner indicated that the Veteran served from 1997 to 2000 and was never treated for a lumbar spine/low back condition and was diagnosed with thoracic scoliosis, a developmental disease that existed prior to service. The examiner went on to emphasize that the Veteran never received any treatment for a lumbar/low back condition and that VA treatment records showed that the Veteran reported a lumbar spine problem 10 years after service and indicated that it began 5 years prior. The examiner added that the Veteran demonstrated a lack of chronicity and concern for thoracic spine pain, and there was no mention of any type of back pain during separation examination. In an August 2020 addendum opinion, the examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran did not incur a lumbar spine diagnosis during military service and that first complaint was not until 2015, fifteen years after military service, at which time the Veteran reported it began 10 years earlier, namely, 5 years after separation from service. However, the Board finds that the examination reports and opinions failed to comply with the Board’s December 2019 remand directives. First, the examiner’s failure to address all segments of the thoracolumbar spine and insist that the Veteran had no lumbar spine treatment in service is contrary to the Board’s characterization of the issue on appeal, namely, service connection for thoracolumbar disability, not only lumbar/low back. Second, the examiner concluded that the thoracic spine scoliosis preexisted service yet failed to answer the Board’s question as to whether it was a “congenital disease” or “congenital defect.” Third, the examiner made a factual determination beyond the scope of the medical opinion that the Veteran was never treated for any back problem in service. In doing so, the examiner ignored the Board’s specific request that the Veteran’s competent and credible lay reports, to include his testimony in July 2019, will be addressed in the opinion. Given these deficiencies, the Board finds that an additional remand is necessary to obtain an adequate addendum opinion. Lastly, the issue of service connection for right lumbar radiculopathy is intertwined with the issue of service connection for a thoracolumbar spine disability, and as such, the Board will defer its decision on this issue pending the proposed development. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate VA examiner to help determine the likely etiology of the claimed thoracolumbar spine disability. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After a review of the record, the examiner is asked to respond to the following: (a) Identify all currently diagnosed thoracolumbar spine disabilities, to include scoliosis and degenerative joint disease. (b) For each currently diagnosed thoracolumbar spine disability, determine whether it is congenital, and if so, clarify whether it is a “congenital disease” or “congenital defect,” (by VA legal definition, a congenital abnormality that is subject to improvement or deterioration is considered a disease while one that is not subject to deterioration or improvement is considered a defect). Then respond to the following: i. If it is a congenital back disease, is it at least as likely as not (a 50 percent or greater probability) was aggravated by service. In doing so, specifically address the fact that the Veteran was asymptomatic at the time of his entrance to service but complained of back problems during service. ii. If it is a congenital back defect, was it subjected to a superimposed injury during service? Specifically consider the falls the Veteran sustained and his reports of carrying heavy equipment regularly. (c) For each thoracolumbar spine disability that is not a congenital disease/defect, provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) had its onset during service or is otherwise related to it. In doing so, address the Veteran’s lay assertions, to include during the July 2019 hearing testimony. (Continued on the next page)   A complete rationale should be provided for all opinions. Please note: lack of contemporaneous medical records does not serve as an “absolute bar” to the service connection claim and cannot be used as a rationale in explaining why the current disability is not related to service. In other words, the examiner should not rely on the facts that there is no documented evidence of treatment while ignoring the Veteran’s lay assertions. 2. Thereafter, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, 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.