Citation Nr: 21020954 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 17-05 725A DATE: April 8, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1995 to March 2003. This matter comes to the Board of Veterans’ Appeals (Board) following an October 2019 Board decision. This matter was originally on appeal from a March 2014 rating decision issued by Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This matter was remanded in February 2018. In an October 2019 decision, the Board denied the Veteran's claim of service connection for a low back disability. The Veteran then appealed the Board's unfavorable determination to the United States Court of Appeals for Veterans Claims (CAVC). Pursuant to a Joint Motion for Remand, the CAVC issued a November 2020 Order to vacate part of the October 2019 decision and remanded the Veteran’s low back disability claim to the Board for readjudication. 1. Entitlement to service connection for a low back disability is remanded. In November 2020, CAVC granted the parties' JMR to vacate and remand the October 2019 Board decision finding the May 2019 VA medical opinion did not substantially comply with the February 2018 Board remand. The parties' agreed that the Board erred in relying on the May 2019 VA examiner’s opinion that the Veteran’s back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness in denying the Veteran’s claim. The examiner reasoned that the Veteran was seen only twice in service, two years apart, for separate back strains. The examiner noted that a simple strain is soft tissue in nature and would not contribute to bony changes between the vertebrae. Further, there is no record of pain for years after 2002. Given the lack of continuity of symptoms following service, it is likely that his in-service strains resolved and that his current condition is due to his congenital sixth vertebra and the natural aging process. It is more likely that the decade of truck driving contributed to his current back condition. Literature explains how sitting in an occupational setting can contribute to low back pain. The examiner also noted, in 2013 he was noted to have a sixth, extra lumbar vertebrae which cannot be incurred but is congenital in nature (he was born with it), and then in 2017 he was found to have “spondylosis (to include degenerative disc disease and degenerative joint disease)” on MRI that was described as “age appropriate spondylosis of the spine.” The JMR found that the examiner’s opinion and rationale are inadequate because the examiner failed to state an opinion or well-reasoned medical explanation as to whether active service, including the 2000 and 2002 events, could have caused the current spondylosis, to include degenerative disc disease and degenerative joint disease. In addition, the JMR stated that the opinion is inadequate because the examiner failed to address the Veteran’s assertions that he has had back symptoms that started in service and have continued since service. Also, in relying on the absence of medical treatment records, the examiner failed to consider the Veteran’s explanations that he received chiropractic care for his back immediately after service, but that those records were no longer available, and that in the years following service, he lacked the financial resources and medical benefits to obtain the necessary medical attention. The parties agreed that the Veteran must be provided with a VA medical nexus opinion that substantially complies with the Board’s February 2018 remand instructions and addresses the Veteran’s lay statements. Following the November 2020 JMR, in February 2021, the Veteran submitted a waiver of opportunity to submit additional evidence response form and selected that his claim be remanded to the AOJ for review of additional evidence he was submitting with his appeal. The Veteran submitted a private examination report and medical opinion. Therefore, the case must be remanded to the RO for initial consideration of the additional evidence. 38 C.F.R. § 20.1304(c) (2019). The matters are REMANDED for the following action: 1. In light of the Veteran’s request for his case to be remanded to the RO for initial consideration of additional evidence submitted in February 2021, this case is remanded to permit such action. 2. After completing the above, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Daley, 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.