Citation Nr: 21015468 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-08 032 DATE: March 17, 2021 REMANDED Entitlement to service connection for a thoracic spine disability is remanded. Entitlement to service connection for a right hand disability, to include as secondary to a thoracic spine disability is remanded. Entitlement to service connection for a right shoulder disability, to include as secondary to a thoracic spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1961 to December 1963. In October 2018 and September 2020, the Board remanded, the case for further development by the originating agency. The case has been returned to the Board for further appellate action. 1. Entitlement to service connection for a thoracic spine disability is remanded. 2. Entitlement to service connection for a right hand disability, to include as secondary to a thoracic spine disability is remanded. 3. Entitlement to service connection for a right shoulder disability, to include as secondary to a thoracic spine disability is remanded. In accordance with the Board’s October 2018 remand, a VA opinion was submitted in June 2019. The examiner found no clear and unmistakable evidence that the Veteran’s current disability existed prior to service. The examiner noted that there were no x-rays of the spine or any other documentation of a chronic thoracic spine condition in the service treatment records. The Board found the 2019 opinion adequate with respect to the preexistence question. Monzingo v. Shinseki, 26Vet. App.97, 105 (2012) (medical opinions are adequate when they sufficiently inform the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion). The examiner also opined that the Veteran’s disability was less likely than not caused by or incurred in service, noting no documentation of an in-service back injury. Instead, the examiner suggested that the disability was likely due to the natural effects of aging, but did not elaborate further. As this opinion did not reflect consideration of the Veteran’s hearing testimony or his account of injury during service, as the Board directed, the Board found the nexus portion of the 2019 opinion inadequate. See e.g. Dalton v. Nicholson, 21Vet. App.23, 39-40 (2007). As such, the Board remanded the claim again in September 2020 for another VA opinion. Addendums to the July 2019 VA opinion were submitted in September and November 2020. The examiner concluded that as he did not find evidence that the Veteran’s thoracic scoliosis was incurred in service and did not find documentation of a back injury causing thoracic scoliosis in service or within one year from discharge, he could not relate the current thoracic scoliosis to service. However, the examiner also stated he had no objection to accepting the Veteran’s lay statements regarding falling out of a truck and any other evidence to make a different judgment than the opinion he provided. Specifically, he stated “ If you think that the veteran's lay statements such the veteran history of ‘falling out of a truck’ and or any other evidence you have seen is acceptable to make a different judgment than the opinion provided, please feel free to accept that, I have no objection to this.” The Board finds this opinion contradictory and nondeterminative and therefore, inadequate for evaluation purposes. As such, a remand for another medical opinion as to the etiology of the currently diagnosed thoracic spine disability is necessary. Barr v. Nicholson, 21 Vet. App. 303 (2007). See also 38 C.F.R. § 4.2 (2019). The Veteran contends that the remaining claimed disabilities are secondary to his thoracic spine disability. Because the Board is again remanding the thoracic spine claim, the remaining claims must be remanded as well. The matters are REMANDED for the following action: 1. Obtain another addendum opinion, from an examiner who has not submitted an opinion before, on the nature and etiology of the Veteran’s thoracic spine disorder. Schedule an in-person examination only if the examiner deems it necessary. The claims folder, including a copy of this remand, should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report or in an addendum. After reviewing all of the evidence, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s currently diagnosed thoracic spine disability is etiologically related to service or manifested to a compensable degree within one year of separation. The examiner’s opinion must reflect consideration of the Veteran’s account of falling out of a truck during service, as well as any other relevant lay evidence. See e.g. August 2017 VA Form 9; June 2018 hearing testimony. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. Review the above opinion to ensure substantial compliance with the Board’s directives and take any necessary corrective action. 3. After completion of the above and any other development deemed necessary, review the expanded record, and readjudicate the issues on appeal. If any claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, afforded an opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if in order. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Yankey, 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.